Tributes: Earl Jellicoe

Baroness Hayman: My Lords, I regret to inform the House of the death of Earl Jellicoe on 22 February. On behalf of the House, I express our condolences to his family and friends.

Baroness Amos: My Lords, I rise to pay tribute to Earl Jellicoe. He was a remarkable man.
	Although we do not recognise the term "Father of the House", which is used in another place, an exception might have been made for Earl Jellicoe, who was a Member of your Lordships' House for 68 years, serving this House in a number of roles. In life, he was characterised by many as an extraordinary individual: full of energy and verve and a truly larger than life figure.
	It is difficult to pay tribute to a life and career that was so full and accomplished across so many spheres. Service and, in particular, public service is an appropriate starting point for this tribute. Earl Jellicoe had an outstanding war record. He initially joined the Coldstream Guards but was later recruited into the SAS where he became first commander of the Special Boat Service, conducting highly dangerous missions into German-controlled Greek islands and, later, Italy and Yugoslavia. For his bravery and success, he was awarded the DSO at the age of 24 and the MC at 26. Foreign Governments also decorated him. He won the Legion d'Honneur, the Croix de Guerre and the Greek War Cross. After the war, he joined the Foreign Office, serving in Washington, Brussels and Baghdad. He resigned in 1958 for personal reasons and, from that point onwards, took a more active role in politics.
	Earl Jellicoe lost his father, the hero of the First World War and Admiral of the Fleet—Sir John Jellicoe and later first Earl of Jellicoe—while he was still at school in Winchester and only 17 years old. Although he inherited his father's title, he could not take his seat until 1939.
	By 1958, when he had retired from the Foreign Service, the Earl had moved from the Cross Benches to the Conservative Benches. His talents and diligence were soon recognised and room was made for him on the Front Bench—first as a Government Whip and later as Joint Parliamentary Secretary in the Ministry of Housing and Local Government and, soon after, as Minister of State for the Home Office. In 1963 he was appointed First Lord of the Admiralty and a year later Minister of Defence for the Royal Navy. In opposition, he served his party as deputy leader and, when his party returned to power in 1970, he was made Lord Privy Seal, Leader of the House and Minister for the Civil Service Department.
	He approached his new role with characteristic vigour and charm. As Leader of the House, he played a significant role in raising the profile and status of this House. Earl Jellicoe reintroduced into the House the tradition of Select Committee work, which had been allowed to lapse since the Second World War. Under his guidance, the Select Committee on Sport and Leisure was set up in 1970. This was soon followed by the Select Committee on the European Community and set in train the tradition of committees of which we are so proud today. It seems hard now to remember a time when this House was not renowned for its work on committees and for the quality of that work, but at that time it was an experiment and one that can only be described as an unmitigated success.
	Lord Jellicoe played another crucial role much later in shaping the committee work of the House. In 1992, he chaired an ad hoc committee on the committee work of this House, whose purpose was to look at the existing committees, consider their reform and extension and compare them with those of the House of Commons. The committee recommended that a permanent committee should scrutinise all Bills to ensure that the delegated powers sought by Ministers were appropriate and subject to the right degree of parliamentary approval. The result was the creation of the Delegated Powers Committee, which remains one of the most respected committees of your Lordships' House. The committee's report also led to a new era in the overall system of Select Committees with the creation of the Liaison Committee.
	Earl Jellicoe often described himself as a reformer in the context of this House. He believed in a partly elected House of Lords based on the regions. Sadly, we will not have the benefit of his experience in our debates on the White Paper on Lords reform in a fortnight's time.
	In 1973, he retired from government and pursued a career in the private sector, but his days of public service were not over. In 1982, he became chairman of the General Medical Council, and for eight years he battled for funding at a time when research budgets were under great pressure. He campaigned for funding to research AIDS when the disease was little known in this country and subject to a great deal of prejudice.
	Earl Jellicoe continued until very recently to play an active role in this House, making contributions to debates on education and Civil Service pension reform, as well as resources for Select Committees. He is survived by four sons and four daughters, and I am sure that the whole House will wish to join me in sending our heartfelt condolences to them all.

Lord Strathclyde: My Lords, I am very grateful to follow the tribute of the noble Baroness the Leader of the House to Lord Jellicoe. Many Members will have been deeply saddened to hear of the death of this outstanding man, who, as well as being an enormously able Leader of this House, working in great harmony with his political opponents, was also "Father" of our House, having entered it in 1939 just before the Second World War. For those of us who are to debate 15-year terms for new Peers, that certainly puts it into perspective.
	George Jellicoe was highly intelligent, winning an exhibition to Cambridge and duly taking a first. He was also an immensely brave man with a quite remarkable war record involving dangerous and—I use advisedly this often overused word—heroic missions behind enemy lines, inflicting great damage on Nazi forces. His leadership qualities struck everyone in those years, as indeed they did throughout his life.
	He had a distinguished Foreign Office career before leaving, for personal reasons, to enter politics. The noble Baroness has set out the bones of his career. It was a piquant irony that the son of the commander of the Grand Fleet at Jutland should have been the last holder of the office of First Lord of the Admiralty, whose abolition foreshadowed the sad, slow decline of British naval power.
	George Jellicoe famously loved life, but he was a highly honourable man, whose word was his bond in a brilliant business career. I find it sad that his name is so often linked to the resignation that ended his career in government in 1973. That principled resignation, freely offered when it was probably not even necessary, was regretted by political friends and foes. Thank goodness it did not end his long and active service to his country in so many areas—parliamentary, diplomatic, business, academic and scientific—which continued well into his 80s.
	In 1998, on the eve of the passage of the Act to remove all hereditary peers from this House, Lord Jellicoe came to see me to inform me that he would not put his name forward for the by-elections. He left my room with a tear in his eye. What I was unable to tell him then was that the noble and learned Lord the Lord Chancellor, Lord Irvine of Lairg, was about to announce that as a former Leader of the House he would be offered a life peerage. It was a measure of the man that he stepped aside to allow others to be elected when he most certainly would have been elected himself. Equally, his rejoicing when he heard the news was a wonderful thing to behold. It also gave him great satisfaction to rejoin the House that he loved so much.
	He was a thoroughly likeable man. He was gifted, courageous, humane and multitalented; a respected friend of many other countries, but a deep patriotic lover of his own. Our sympathies go out to his entire family. How proud they can be of his extraordinary career.

Lord McNally: My Lords, it is always difficult to pay tribute to someone whom one did not know personally. On the Liberal Democrat Benches, we are fortunate in having a keeper of the collective memory in my noble friend Lady Thomas of Winchester. She is often a ruthless assessor of your Lordships but, when I asked her about Lord Jellicoe, she said without hesitation that he was a man respected and admired by all sides of the House. She went further and said that in her view, and as was indicated by the Lord President, his work on committee reform was the real start of House of Lords reform.
	He was the son of a war hero, but the DSO and MC clearly did not come with the rations. For those who are not regular Guardian readers, I shall quote to the House today's obituary in that paper:
	"When the war came, rather than exploit his name in the Royal Navy, he opted for the Coldstream Guards, serving later with No. 8 Commando and the 1st Special Air Service Regiment. He won the DSO for his part in a sabotage attack on a Nazi airfield at Heraklion, in Crete. He was parachuted on to the island, avoided capture by pretending to be a Cretan drunk, worked his way into the bomb-proof aircraft shelters and laid charges which destroyed 16 aircraft".
	That would not look out of place in a James Bond film, yet he was one of our colleagues in this House.
	For my noble friend Lady Bonham-Carter, from her childhood, George Jellicoe was a family friend. She swears that there are many elderly Greeks who today are convinced that George Jellicoe liberated Athens after he commandeered a bicycle to race ahead of liberating forces to reach the appropriately named Hotel Grand Britannia first.
	The Guardian obituary, to which I referred, lists him as having backed the abolition of hanging in the 1960s against the opinion of most of his party, and as clashing with the then Lord Salisbury over support to Rhodesia at the time of UDI and with the Duke of Norfolk over stem cell research. He was not a "yes" man. The Independent sums him up as a soldier, diplomat, politician and businessman, concluding:
	"Few public figures have led such a varied and exciting life as George Jellicoe".
	As with all long lives, there were, as the noble Lord, Lord Strathclyde, indicated, both lows and highs, but he was a great servant of his country in war and in peace and he was also a great servant of this House.

Lord Williamson of Horton: My Lords, we on the Cross Benches join in the warm tributes to Earl Jellicoe and send our sympathies to his family. Although he may be remembered in this House mainly for his political career and as a very successful Leader of the House, he was indeed a man for all seasons and a man of remarkably diverse talents. It would be difficult to think of an Englishman of this generation who achieved more and in so many fields.
	His wartime career was quite outstanding, including death-defying operations in the SAS and the Special Boat Service. His name was still remembered in Crete when I recently visited there. Having helped to win the war, he turned to diplomacy in Brussels, Washington and Baghdad, where he was deputy secretary-general of the Baghdad Pact, and then turned back from service abroad to begin a political career at home. We on these Benches note that he began here as a Cross-Bencher before joining the Tories and becoming, first, Deputy Leader of the Opposition and, subsequently, Lord Privy Seal and Leader of the House. There is a lot to be said for being in three groups over a period of time.
	He was a dedicated European, and I have always appreciated his saying that nothing would please him more than encouraging some of the best in the British Civil Service to work for the European Community in Brussels. Outside his military, diplomatic and political career, he held important posts in business and research, including in the medical field, and was a fellow of the Royal Society. When shall we see his like again?

The Lord Bishop of St Edmundsbury and Ipswich: My Lords, so much has already been said and a huge amount has been written in the newspaper obituaries. We on these Benches, on whose behalf I speak, would want to be closely associated with everything that has been said about Lord Jellicoe in the tributes today. Some of us are particularly aware of his extraordinary energy and drive when he was chair of the council of King's College, London in the late 1970s and early 1980s. It was a time that laid the foundation for huge development, in which he played an important and fundamental part.
	Because of the unusual and possibly unique relationship between the diocese of Hereford and the SAS, which is based in the city, it would be right to acknowledge the remarkable role that Lord Jellicoe played in the SAS, in the early days with David Stirling, then as the first commander of the SBS and latterly as president and subsequently patron of the SAS Regimental Association in the late 1990s. We mark the passing of an extraordinary and larger-than-life man, who made a considerable contribution to the life and work of this House and as a Minister of State. Our thoughts and prayers are today very much with his family.

Lord Baker of Dorking: My Lords, I was George Jellicoe's junior Minister back in 1972-73, when he was Leader of the House and responsible for the Civil Service Department. I was lucky, as a fledgling politician, to learn so much from him. He was a heavyweight in Ted Heath's Cabinet and had also served in the Macmillan and Douglas-Home Governments.
	Something that has not quite come out is that he had enormous vivacity, liveliness and an enhancing spirit. Given his war record, I always felt that it was a great pity that there was no war somewhere in the world at that time that George could have won. He was devoted to his department and it to him, for one simple reason. He had a characteristic that many people who committed acts of great bravery and courage in fighting in the Second World War had; they evoked enormous devotion and loyalty from those whom they led. That was the case in the department.
	On the day he resigned, several senior civil servants came to me, including Sir William Armstrong, and expressed their sadness in very emotional terms. They were appalled that he had to go. His resignation was a ricochet of the Lambton affair. I doubt whether a Minister would have to go today.
	On the night before his resignation, his last public engagement was to speak in the great painted naval hall at Greenwich. There was a fiendish witch-hunt going on; the paparazzi were around him and his family. Most weaker figures would not have turned up that night, but he did. It was fitting that his last speech as a Cabinet Minister was made in the hall so dear both to him and his family. I was lucky and proud to serve George Jellicoe.

Iran

Lord Astor of Hever: asked Her Majesty's Government:
	What assessment they have made of Iran's influence on events in Iraq, Afghanistan and international seaways.

Lord Triesman: My Lords, Iran is an influential player in the Middle East, including in maritime areas. There are many close ties between Iran and its neighbours, Iraq and Afghanistan. The Iranian Government have committed to support the Government of Afghanistan and the international community to build security and stability. We welcome Iran's efforts to stem the flow of illegal narcotics across the Iran-Afghanistan border.

Lord Astor of Hever: My Lords, I am grateful to the Minister for that reply. The recent provocative Iranian exercises in the Gulf, with new anti-ship missiles and practice attacks on barges, demonstrate an ability to disrupt sea traffic in that vital international waterway. Can the Minister confirm that we have sufficient Royal Navy ships in the area to protect our right of free passage?

Lord Triesman: My Lords, I understand that the Iranian navy has traditionally been the smallest element of its armed forces, but with a significant headquarters in the Strait of Hormuz and smaller bases in the Caspian Sea and the northern Gulf. It plainly has an ability to exercise considerable influence over waterways in that area, and could have the ability to disrupt shipping in the Strait of Hormuz. There are grounds for thinking that our forces and forces of other members of the international community could dissuade it from doing so, but that would depend to some extent on whether it showed good sense and international community spirit in how it operated.

Lord Anderson of Swansea: My Lords, it is clear that Iran is playing a negative role, not only in the area mentioned by the noble Lord, Lord Astor, but in other areas—such as encouraging Hezbollah and Hamas. Yet the old Soviet Union played such a negative role in the past, and in response we decided to contain and engage with all the instruments of soft power available to us. Are there not serious lessons to be learnt now regarding Iran from that experience, and is it not quite wrong that the US—contrary to our interests and general western interests—refuses to parlay with Iran in areas of important interest worldwide?

Lord Triesman: My Lords, this Government have decided that they wish to keep channels of communication open and fruitful, and they are engaged with others, particularly on the Iranian nuclear portfolio. That has all been broadly helpful, and there is a good deal of co-operation among a number of nations, including the United States, around UN Security Council Resolution 1737. I take the view that diplomatic discussions and the attempts to persuade Iran to take a different route remain absolutely fundamental to our efforts. I comment only on our own efforts in that regard; they are the right way to go.

Lord Hannay of Chiswick: My Lords, could the noble Lord confirm that it remains government policy to support the recommendation of the Baker-Hamilton report that Iran, along with Iraq's other neighbours, needs to be firmly engaged in an effort to stabilise Iraq? What are the Government doing about getting that support?

Lord Triesman: My Lords, we continue to work to engage with Iran, as I said in my opening comments. We have, alongside that, made clear our objections to the interference that has taken place in Iraq, but that does not alter the general trajectory of diplomatic approach as a key implement in this matter. We are trying to ensure that all those who engage in the international community take that view.

Lord Garden: My Lords, in the light of the Minister's answers, what discussions have Her Majesty's Government had with Iran in the past 12 months about mutual security interests in Iraq, Afghanistan and the international seaways?

Lord Triesman: My Lords, discussions have taken place on a number of occasions. Through the Foreign Secretary, we have sought to have discussions through normal diplomatic routes. In all those cases, we are trying to get normalisation and stability in arrangements around the international seaways.

Lord Roberts of Conwy: My Lords, can the noble Lord confirm what is stated in a letter in the Times today—namely, that Iran contributed to the defeat of al-Qaeda and the Taliban in Afghanistan? What sort of value and assessment have the Government made of that contribution regarding the future in Afghanistan?

Lord Triesman: My Lords, I think there is some evidence—admittedly it has not been shared widely because a good deal of it has come through confidential and intelligence sources—about a contribution in that area. There may well need to be an assessment of what has been said in the Times before a more detailed report can be given. I am sure that the House will accept that some areas of this will never—at least, not in my lifetime—be susceptible to detailed analysis.

Lord Wedderburn of Charlton: My Lords, the Minister speaks of keeping channels open. Will the Government renew their support for groups inside Iran that are pressing peacefully for democratic change? Will they reconsider the freezing of their assets in the way that is objectionable in the light of a court of the European Union in Luxembourg?

Lord Triesman: My Lords, we always encourage those who pursue democratic processes, but we will not seek to interfere directly in the internal affairs of a country that has those groups in it. I am sure that they would not necessarily welcome us doing so. We have been consistent in our support for those who have argued for a richer civil society. A great deal of work has been done in support of that civil society, and that is probably the way in which we will see the flowering of a far more pluralistic society in Iran.

Lord Howell of Guildford: My Lords, does the Minister agree that one area where we might work very positively with the Iranians is on the difficult question of controlling poppy cultivation in Afghanistan? The Iranians have considerable experience and quite a good track record in that area. Despite all the difficulties that we have to handle, and the rather aggressive approach of some of the Iranian pronouncements, could we not work positively with them in that area where success is badly needed because, frankly, the drug problem is getting worse?

Lord Triesman: My Lords, that is an entirely practical suggestion, and work has started in order to deal with issues of border security and eradication. It is in the interests of the Iranian people and most certainly in the interests of the people of the United Kingdom that we pursue that kind of work and succeed in it.

Immigration: Entry Clearance Refusals

Baroness Quin: asked Her Majesty's Government:
	When they expect to respond to the 2005 report of the Independent Monitor for Entry Clearance Refusals without the Right of Appeal.

Lord Triesman: My Lords, on 15 January 2007, my right honourable friend the Secretary of State made a Written Ministerial Statement in another place announcing the publication of the independent monitor's report on refusals without the right of appeal, made in 2005. Copies of the report were placed in the Libraries of the two Houses, and it was published on the UKvisas website. My right honourable friend also announced that UKvisas had placed on the website its response to recommendations made in the report.

Baroness Quin: My Lords, I thank my noble friend and hope that the Government will ensure that the issues and problems highlighted in the report are addressed. Is he aware of the media coverage and indeed the indignation in Gateshead and on Tyneside about the fact that, despite Gateshead's huge and successful efforts to promote tourism using the Angel of the North, the Gateshead Millennium Bridge, the new regional music and arts venues and so on, the report recounts an entry clearance officer refusing a visitor entry into the UK on the grounds that Gateshead is not a credible tourist destination?

Noble Lords: Oh!

Baroness Quin: I am glad that noble Lords share my concern. Would the Government like to show some flair and reinvite the tourist whose application was thus blocked, perhaps together with the ignorant entry clearance official, and help not hinder the tourism image that the north-east richly deserves?

Lord Triesman: My Lords, that is an entirely appropriate question from my noble friend, who, I believe, got the freedom of Gateshead relatively recently, along with my noble friend Lord Burlison. I always love going to the north-east, except when my football team gets beaten up there. On all other occasions, there is a huge amount to recommend it to everybody as a destination. I encourage people to go. I am not certain whether the Government should pay for entry clearance officers or anybody else to learn that lesson, but I hope that they will take the spirit of the response that I have given.

Lord Avebury: My Lords, why are subjective criteria still being used to evaluate entry certificate applications for visitors and students, such as in the example cited by the noble Baroness, despite the fact that the Minister assured me in a Written Answer on 9 October last that instructions had been given on objective assessment on no fewer than three occasions: in March, August and November 2005? Does not the report confirm fears that we expressed a year ago about the number of people still wrongly denied their appeal rights? As the FCO already knew of that from reports going back three years, why has it done nothing about it?

Lord Triesman: My Lords, I do not accept the assumptions in the question. The overwhelming proportion of people who apply to come to this country get a visa. A relatively small proportion of those who do not get a visa have been shown by the independent monitor to have had misjudgments made in their case. Of those refused, 4.5 per cent were found to have been refused on the basis of poor judgment.
	Principally the criteria are objective but some assessment must be made about the intent of the person who applies and whether they can honestly convince the entry clearance officer that they intend to leave the United Kingdom on the expiry of their visa. I do not think that human judgment can be completely excluded in these matters, even if the whole platform should be broadly objective.

Lord Tomlinson: My Lords, does my noble friend agree that in the report to which my noble friend Lady Quin referred is empirical evidence of the need to move with all due speed towards the new managed migration system and the points-based system, and that anything done to delay the introduction of that system will leave us with more and more subjective and less objective decision-making in this area?

Lord Triesman: My Lords, the points-based system should, in general, across the categories that it covers, have a much more objective basis. As the Minister specifically responsible for that area in the Foreign Office, I am very insistent that the new pattern of training for entry clearance officers—proper qualifications to do the job, proper qualifications for promotion—should also be fundamental. People cannot do a modern, professional job in a modern, professional world unless they are properly trained to do it and there is some assessment of their ability.

Viscount Bridgeman: My Lords, in her report, published on 11 January, the independent monitor referred to,
	"clear, accurate and up to date policy and practice guidance",
	not being available and that in her experience she found the guidance,
	"contradictory, incomplete and difficult to access".
	Does the Minister agree that some other solutions could be as simple as cutting material from a multiplicity of sources and pasting it into a single authoritative document, and that those and other improvements could be put in hand forthwith, without waiting for the Government's reply?

Lord Triesman: My Lords, the advice issued has often come out in shorter pieces and has been added together cumulatively in a way that I do not believe has been effective. I share the noble Viscount's view about that. A major attempt is being made to get it into a single, simple, consolidated document. Given that the regulations go back for a very long period and you cannot simply take pieces out because they do not read as well as others, it is a rather laborious task but it is imperative.

Lord Dholakia: My Lords, is the Minister aware of the judicial review announced on 9 February about doctors born overseas? The judge commented that the Home Office had failed to carry out a statutory race impact assessment and that no consultation had taken place. Were those criteria met when the rejection of appeal was being discussed?

Lord Triesman: My Lords, the role that UKvisas and the Foreign Office play mean that we must ensure that the Immigration Rules and the criteria, especially the objective criteria, have been followed. Any guidance from the courts that suggests that we, more broadly across government, should address issues further will of course be considered, but there is strong evidence from the monitor herself that there has been a very serious and qualitatively better application of the rules since she reported.

Russia: Mr Litvinenko

Lord Judd: asked Her Majesty's Government:
	What co-operation there has been between British and Russian authorities in the investigation of the murder of Alexander Litvinenko; and what implications this has for their relations with Russia.

Baroness Scotland of Asthal: My Lords, the United Kingdom has made several requests to Russia for mutual legal assistance in relation to the domestic investigation into the death of Mr Litvinenko. The Russian authorities have co-operated with the requests made. A request for assistance has also been received from Russia. The Home Secretary has considered its request, and has submitted it to the Metropolitan Police Service for further consideration. The Metropolitan Police are co-operating with the Russian authorities within UK law.

Lord Judd: My Lords, I thank my noble friend for that very full reply, but does she not agree that the cruel death of Alexander Litvinenko must be seen against the recent assassination of Anna Politkovskaya and some 12 other Russian journalists in recent years? Taken together with the restrictions on the media and NGOs in Russia and the continued ruthless oppression in Chechnya, which lies behind the claimed stability in that part of Russia, is it not essential that we avoid condoning in any way, directly or indirectly, activities that simply cannot be reconciled with the cause of the rule of law, justice and democracy, which we are so trenchantly advocating across the world?

Baroness Scotland of Asthal: My Lords, we take every opportunity to have a mature and frank relationship with all our international partners, including Russia, in relation to human rights, the rule of law and democracy. But it would be quite wrong to conflate the different cases, which we must consider in a way that would not inure to the benefit of justice. We are taking every step to ensure that we do that.

Lord Chidgey: My Lords, nevertheless, is the Minister aware that, in some quarters in Moscow, the Government are being accused of double standards in dealing with requests for the extradition of certain Russian citizens, such as Boris Berezovsky and the Chechen leader, Ahmed Zakayev, while at the same time it is claimed that we are happy to deport suspected al-Qaeda terrorists back to their own countries? In that regard, can the Minister give us more information about the negotiations that are being held on the death of Alexander Litvinenko? Has Boris Berezovsky's name been brought up in those discussions as a possible prime suspect, given that he is a very strong opponent of the current regime in Russia and particularly given the upcoming presidential elections?

Baroness Scotland of Asthal: My Lords, first, I should make it clear that there are no negotiations on Mr Litvinenko's case. Noble Lords will know that we have a Crime (International Co-operation) Act 2003, which sets out the criteria under which requests can be made by either party in those proceedings. That Act is what will govern all our relations with Russia on this issue.

Lord Howell of Guildford: My Lords, may I say how pleased I am, as I am sure are all noble Lords, to see the noble Baroness, Lady Scotland, back in her place after her recent absence and sad bereavement? On the question in hand, does she accept that although, for geopolitical reasons, we are going to need Russia's help and support on a variety of crucial issues, not least the handling of Iran, when it comes to detailed exchanges we have the right to expect of Russia the behaviour of a power that aspires to be a democracy? In this respect, if the Russian detectives and Russian police authorities want to come here to examine this particular case, surely the Russian prosecutors should not be quite so ready to rule out all questions of extradition in the way that they have. It seems that they have ruled it out not merely for a particular individual, who has been named, but for all purposes connected with this case. Will the Minister assure us that the Government will put the case for reciprocity, balance and fairness very clearly indeed?

Baroness Scotland of Asthal: My Lords, I reassure the noble Lord that the Government have always put the case for reciprocity and fairness clearly with our Russian colleagues. Of course we have good relations with a number of our international partners, but that does not restrict or restrain us from raising issues that cause us acute and/or grave concern. Justice, human rights and fair play are issues that we will continue to press with all those with whom we deal.

Lord Dholakia: My Lords, have any discussions taken place with the Soviet Government to ensure that one or more of their citizens can be tried in British courts?

Baroness Scotland of Asthal: My Lords, first I should remind the noble Lord that there is no longer a Soviet Government, but a Russian one. We will continue energetically to discuss with the Russian Government the priorities that I have just described. Noble Lords will know that the Litvinenko case is ongoing and I am not in a position to disclose or discuss particular issues in relation to it. However, we will continue to work very hard indeed on these issues. Lastly, I take this opportunity to thank the noble Lord, Lord Howell, for his words and all noble Lords who have been extraordinarily kind to me. I very much appreciate it.

Lord Rea: My Lords, will my noble friend ensure that her right honourable friend the Foreign Secretary does not allow the issue of Chechnya to fall off the international agenda? As my noble friend Lord Judd said, gross human rights abuses continue to take place. Alexander Litvinenko was one of the most prominent in describing these, along with the part played by the FSB—the organisation to which Mr Litvinenko had once belonged—in fomenting particularly the second war in Chechnya. Will she make sure that this issue is not allowed to drop off the international agenda, but is raised at every possible opportunity in the United Nations, the European Union and other bodies?

Baroness Scotland of Asthal: My Lords, I can assure my noble friend that we remain deeply concerned about the situation in the north Caucasus, which remains fragile and vulnerable in terms of human rights violations. We will continue to press those issues with our partners.

Israel: Military Hostages

Lord Janner of Braunstone: asked Her Majesty's Government:
	What progress they can report, following the representations which they, together with other Governments or international organisations, have made concerning the release of the three Israeli soldiers captured in Lebanon and Gaza in 2006.

Lord Triesman: My Lords, along with our international partners, including the UN Secretary-General, we continue to call for the Israeli soldiers to be immediately and unconditionally released. We welcome the efforts of regional and international partners who are working to secure their release and have offered our assistance. We believe that the release of the Israeli soldiers would be an important step both for humanitarian reasons and for advancing the peace process.

Lord Janner of Braunstone: My Lords, I thank my noble friend for that Answer, with which I fully concur. Does he agree that the need for the return of these kidnapped soldiers is both real and symbolic?It is certainly real for their families and symbolically it would mark one of the first steps that we hope will be taken along the path to peace. Further, has my noble friend seen the leader in the Times today referring to these captive soldiers as such a valuable prize to the terrorists who captured them that it can be assumed that they are still alive and that Hezbollah is in effect preparing for the next war, which it would initiate? In those circumstances, will my noble friend give the House an assurance that efforts to obtain the release of these soldiers will continue as energetically as possible?

Lord Triesman: My Lords, I can certainly give that assurance. We and our international partners are working hard towards an outcome which I believe would considerably assist the peace process. In his latest report on Security Council Resolution 1701, the UN Secretary-General raised his concerns about Hezbollah re-arming, particularly across the Syria-Lebanon border. We share those concerns and we are working with our international partners to support the Lebanese Government in building up their border monitoring capacity. Further, we continue to express in forthright terms our concerns about Iran's role in funding and equipping Hezbollah. We are in exactly the position the House would expect us to be in.

Lord Steel of Aikwood: My Lords, when I was in Lebanon last month I had an unexpected meeting with the leader of Hezbollah in south Lebanon. I took the opportunity to ask him about the abducted soldiers. He said that Hezbollah hoped to exchange them for Lebanese prisoners held in Israel along the same lines as they had before. Will the Minister therefore energetically pursue a dialogue in the way he has indicated and not leave the way open for further conflict between Hezbollah and Israel of the kind which left 1,200 people dead; led to massive destruction in Beirut and south Lebanon; failed to recover the Israeli soldiers and resulted in the death of five others; and, worst of all, left Hezbollah stronger in the Lebanon? Can he do everything to avoid a repetition of that conflict?

Lord Triesman: My Lords, the need for a comprehensive agreement about peaceful relations across all those borders and across all those countries remains at the heart of the work of the international community, and a great deal of effort is being put into that. We have seen two visits by the Prime Minister in recent months; the Foreign Secretary was in the region between 5 and 7 February, discussing exactly these issues; President Abbas will be visiting London for talks with the Prime Minister and the Foreign Secretary; and we will continue to do all we can to support the Government of Lebanon in increasing security. No one wants to see a repeat of last summer.

Lord Blaker: My Lords, I very much hope the soldiers will be released before long, but might it not help if there were wider negotiations between Israel and the Palestinians, for example, as well as between Israel and some Arab countries? The conditions that Israel sets, backed by the quartet, before negotiations can begin are that the Palestinians must recognise Israel, renounce violence and accept all previous engagements. Are those conditions really helpful?

Lord Triesman: My Lords, it is hard in any negotiation to talk fruitfully to people who say that you have no right to exist and who are prepared to use extreme violence to achieve that end. It does not seem wholly unreasonable that people say, "Let us at least have the basis of an understanding that is peaceable". However, the Government have welcomed the deal brokered by the Saudis, which could potentially produce a partner with whom Israel can bargain fruitfully. Still, I urge that partner itself to desist from a precondition—namely, that it cannot tolerate the existence of the state of Israel—before it starts talking.

Lord Dykes: My Lords, I, too, refer to the Palestinian detainees, as the Lebanese detainees have been mentioned by my noble friend. We on these Benches strongly support the immediate release of the three Israeli soldiers, the quicker the better. The Government have been making representations about that. However, will they also resume, even more strenuously, their previously very strong representations to secure the release of something like 8,000 Palestinian detainees, most of them detained without trial, often in very harsh and stressful conditions? We can remind ourselves sombrely that that figure is, pro rata, about twice the United Kingdom's entire prison population.

Lord Triesman: My Lords, I suspect that the fact that a large number of people are being held by the Israelis is not helpful to the peace process. I have said that from this Dispatch Box in the past. With reference to the original Question, confidence-building must depend on states that are neighbours to each other not crossing each other's borders and seizing each other's citizens. Those are not conditions in which there is likely to be a fruitful peace negotiation, and everyone has responsibilities in that respect.

Lord Howell of Guildford: My Lords, the noble Lord, Lord Steel, is right that the attack on Hezbollah by Israel to recover the three soldiers was particularly inept, and that several people have resigned, recognising that it was badly managed. It has left Hezbollah possibly as powerful as ever and still trying to undermine the Government of Lebanon directly.
	The Minister said we are helping the Lebanese Government and Mr Sinora. Would he say how we are doing so? They are under considerable pressure from street violence by those who are attempting to overthrow a democratically elected Government.

Lord Triesman: My Lords, we are helping in a number of ways. We are strong supporters of the United Nations force that is attempting to clear paramilitary and militia detachments from parts of Lebanon, which is not easy; we well understand the extent to which they are embedded in that part of the country. We are trying to ensure that there are discussions among the factions in Lebanon to try to produce a means of sustaining the Government of Lebanon. But, first and foremost, we are trying to ensure that the route map for the Middle East peace process is resuscitated. Without that happening, I doubt we have the preconditions for anything else to succeed.

Business

Lord Grocott: My Lords, with the leave of the House, a Statement will be repeated this afternoon on force levels in Afghanistan. It will be repeated by my noble friend Lord Drayson, and we will take it at a convenient time after 3.30 pm.

Local Authorities (Contracting Out of Anti-social Behaviour Order Functions) (England) Order 2007

Baroness Morgan of Drefelin: My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That the draft order laid before the House on 9 January be approved. Considered in Grand Committee on 21 February, 5th Report from the Statutory Instruments Committee and 8th Report from the Merits Committee.—(Baroness Morgan of Drefelin.)
	On Question, Motion agreed to.

Mental Health Bill [HL]

Lord Hunt of Kings Heath: My Lords, I beg to move that the Bill be now further considered on Report.

Moved accordingly, and, on Question, Motion agreed to.

Lord Williamson of Horton: moved Amendment No. 25:
	After Clause 21, insert the following new Clause—
	"Children and young people
	After section 142 of the 1983 Act insert—
	"142A Admission to age appropriate setting
	In the case of an application for admission for assessment and treatment for a mental disorder, whether voluntary or not, in the case of any child or young person under the age of 18 years, a clinician with specialist training in child or adolescent mental health shall assess the needs of the child or young person and a PCT or equivalent health board shall provide for such services and accommodation as are sufficient for the particular needs of that child or young person.
	142B Medical assessment by a CAMHS specialist prior to imposition of compulsion for a child or young person
	In the case of a minor under the age of 18, who is admitted for assessment under section 2 or admitted for treatment under section 3, one recommendation as specified in these sections shall, except in an emergency where no child or adolescent mental health specialist is available, be made by a qualified child and adolescent registered medical practitioner.
	142C Clinical supervisor
	Wherever under any provision of this Act a responsible clinician is to be appointed if the patient is a minor under 18 that clinician shall, except in an emergency where no child and adolescent mental health specialist is available, be a child and adolescent mental health specialist.""

Lord Williamson of Horton: My Lords, as this is the first amendment I have moved at this stage of the Bill, I should like to say that I appreciate the efforts the Minister has made to respond to the many points which rained down during Committee. I think we can say that there are at least some rays of sunshine—I hope we will see them on this amendment and on others. The Minister knows, however, that I and other noble Lords who have put their name to the amendment attach much importance to it, which concerns children and young people exclusively.
	The first part of the amendment deals with the requirement to treat children and young persons under the age of 18 in a way appropriate to their needs. The public might think that this is so self-evident that we should not have to debate it on the Floor of the House. However, we know that despite the very great improvements in mental health care and services in recent years, in practice children and young persons with mental health problems and disorders are not always treated in an age-appropriate setting. My noble friend Lord Patel of Bradford gave some shocking examples when he spoke in Committee, and the very recent report by the Children's Commissioner, entitled Pushed into the Shadows, has some more.
	In presenting this Bill, the Government have given Parliament the right opportunity to improve the present situation for children and young people. We know that many mental health problems come about in the teenage years and that the best assessment and care at this time and the confidence of the patient in his or her treatment can give longer-term benefits, and perhaps help to reduce the revolving-door phenomenon under which mental health patients go in and out of hospital, which it is one of the Bill's objectives to reduce.
	More specifically, the amendment requires first that for children and young persons under the age of 18, when there is an application for admission and treatment for a mental disorder, there should be an assessment by a medical practitioner with specialist training in child or adolescent mental health; and secondly that the health authority or equivalent health body,
	"shall provide for such services and accommodation as are sufficient for the particular needs of that child or young person".
	We find this quite appropriate to the Bill, as did our Scottish colleagues when they included the same words in Section 23 of the Mental Health (Care and Treatment) (Scotland) Act 2003, thereby setting an excellent precedent.
	We recognise that in proposing including the appropriate treatment test in the criteria for detention, the Government have recognised that there is a problem and sought to provide a partial remedy. To that extent, there is common ground between us. But the effect could be that if the primary care trust did not provide care in a CAMHS unit and an adult unit was deemed not safe, the child or young person could not be detained and would not get the place of safety which might be necessary. Nor does the Government's approach deal with children or young people to be admitted on a voluntary basis. Our approach is more direct and, in our view, more reliably effective.
	At an early stage, the Minister indicated that it is not appropriate to put services on the face of the Bill. We are frankly baffled by that argument. As a former civil servant, I feel tempted to say that it must have been invented by a civil servant. The Mental Health Act, as amended by this Bill, is littered with service provisions, which is a good thing. As Rosie Winterton, the Minister of State, made clear on 30 January in the all-party parliamentary group: "This Bill is about making sure that people get the care they need". Good for Rosie. In any event, in this amendment we are not talking about a newly differentiated group of people, such as market gardeners, asylum seekers or circus artists, but proposing an amendment for children and young people. In almost every sphere of our society we differentiate services for children and young people—for example, children's hospitals, school buses, young offender institutions, the Children Act and so on.
	The two remaining parts of this amendment are complementary to the first. They deal with medical assessment by a children and adult mental health specialist, and clinical supervision by a similarly qualified specialist for children and young persons under the age of 18. The Minister will note that for practical reasons these requirements can be over-ridden in case of urgency or emergency.
	Finally, despite the Government's good intentions, which we recognise, neither the code nor the Government's policy guidance has protected the children who have been admitted to adult wards in past years and we are not convinced that a reiteration in the code will make much difference, which is why we invite the Government to put this provision in the Bill. I beg to move.

Earl Howe: My Lords, I cannot better the case put forward by the noble Lord, Lord Williamson, in favour of this amendment, but I should like to express my firm support for it and to add some emphasis to a number of the points that he has so ably made. I begin by saying how much I endorse his arguments in favour of an age-appropriate setting for children and young people under the age of 18. This seems a classic example of a win-win amendment. We are all aware of real horror stories involving children who are sent to adult wards for treatment, and who are then molested and traumatised by adult patients. The experiences endured by young people in such circumstances are often terrible.
	However, it is not only those horror stories that this amendment is about. It is about that central, key issue which has surfaced and resurfaced throughout our debates on this Bill; namely, that fear of the mental health care system engendered by traumatic experiences of whatever nature carries with it the potential for wholesale disengagement from mental health services in the future. The moment we see that happening—it happens often—there is only one consequence. The child or young person will not wish to seek help from anyone—they are turned off. They will hide their symptoms and carry on in a state of acute mental distress until they have reached crisis point. The irony is that having reached that crisis point, they are more likely to be treated under compulsion—so the trauma repeats itself.
	The acuity of need among some young people carried over into adulthood is a cause for grave concern. Recent research has shown that almost 78 per cent of adult service users receiving intensive services had received a diagnosis before the age of 18; 60 per cent had received such a diagnosis before the age of 15. Those figures underline the importance of making sure that children and young people with mental health problems receive the services that are appropriate to their needs and which make them want to trust and use those services in the future if they need to.
	The Minister may well fall back on the standard response by saying that this is an amendment about service provision, but I hope he will see that it is not just about that. It is about doing the thing that Ministers have repeatedly said that they want this Bill to do; namely, to make sure that people get the care they need when compulsion has to be used. The Minister said in Committee that it was difficult to specify services to a particular group. I must say that I did not really follow that argument; when I think of all the Bills that we have debated in this House over the past few years relating to children and services to children, I wonder where that argument came from.
	Nobody doubts the Government's sincerity in wanting to see better mental health services for children and young people. We hear the right things being said, both in the code of practice and the children's NSF, but we know from the royal college, the Children's Commissioner and the noble Lord, Lord Patel, in Committee that neither policy guidance nor the code has delivered the desired results. Good practice is, regrettably, not the norm.
	Research published in the BMJ shows that more than one-third of all young people admitted to hospital for a mental illness are admitted to a general psychiatric or paediatric ward. Something more needs to be done. We know that the implementation of standard 9 in the NSF is receiving what the Minister, Ivan Lewis, called unprecedented priority, and that resources are being put into that whole area with the aim of solving the problem over the next two years. That is what Mr Lewis has said—and, if it is so, there really should be no argument about giving statutory backing to the notion of an age-appropriate setting. For once, we are not faced by funding constraints, because the funding has already been allocated, so I hope that the Minister will be receptive and sympathetic to everything that the noble Lord, Lord Williamson, argued for.

Baroness Meacher: My Lords, I begin my brief remarks with an acknowledgment that the Government's injection of funds into the health service over the past seven years has enabled some very significant improvements in in-patient services for children and young people. In east London, where I am the chairman of a mental health trust, we opened last year a purpose-built and beautiful new unit for children and young people, with 15 in-patient beds and six day places. We are very proud of the service that we can now provide, but my staff tell me how incredibly lucky we are. They are appalled at how children are treated up and down the country in places where, sadly, boroughs and trusts do not have the facilities that we have.
	The reality is that the number of general NHS CAMHS beds has increased by only 4 per cent between 1999 and 2006. The result is that many areas still admit children and young people to adult wards and rely on the private sector, where the young person may be many miles from home and the cost may be exorbitant. Until last year, we were in that position; we were placing children from the east end of London down in Sussex or Berkshire. Noble Lords can imagine how often parents could visit those children—and there was no chance of the children coming by day, which is very important for some categories of disorder, such as anorexia.
	We know from the Children and Young Person's Inpatient Evaluation Study of in-patient care for eight to 18 year-olds that in-patient care is effective for very severe levels of disorder. In some of these cases, we can prevent the situation getting out of control and becoming absolutely chronic. In the study, the children showed considerable recovery, which was clinically significant, and family relationships, which are so crucial to a child's well-being, improved—and the improvement continued over a one-year follow-up period.
	In supporting this amendment, I am mindful of the conclusion of the Department of Health's Every Child Matters report that CAMHS,
	"should expect to achieve by the mid-point of the NSF cycle the elimination of the use of adult wards for all but a few older adolescents who find themselves associating more readily with young adults".
	This amendment seeks only to ensure that sufficient priority is given to achieving the objectives set out in the Government's own report.
	The Minister for Care Services, Ivan Lewis, agrees with us. He said that,
	"we should be seeking a situation where no child ends up in an adult ward environment".
	He went on to say that,
	"that should be our ... mission".
	It is our mission today.
	One of the central tenets of medicine is that health services should not do harm. But the Children's Commissioner, Professor Sir Al Aynsley-Green, said he feared that children could be more damaged than helped by the experience of being on an adult psychiatric ward. As someone who makes a point of regularly meeting patients and staff on adult wards, I share that view. The reality of adult in-patient wards today is that staff are managing in-patients with ever more serious and complex psychiatric disorders. Anyone who can be managed in the community is managed by one of the community teams, even if that involves daily visits—three or four visits a day—and hours of every day being spent in that person's home. The result is that any in-patient is likely to be severely disturbed. You do not have the sort of balance that you had 10 years ago where you had a number of reasonably stable patients and others who were a bit more disturbed. Today, everybody in those wards is a severely disturbed person. Thus, it is ever more urgent to avoid children and young persons being placed in a highly volatile adult in-patient environment.
	In Committee the Minister suggested that the Mental Health Act was concerned with the legal processes around mental health and that:
	"It is much more difficult to move on from there to specifying services to be provided to a certain group".—[Official Report, 15/1/07; col. 559.]
	In fact, proposed new Sections 142B and 142C in the amendment refer exclusively to detained young people. The Bill is very clear about who will be involved in the assessment of adults under the Act. It seems entirely in keeping with the spirit of the Bill that it should specify that appropriately qualified clinicians must be involved in the assessment of young people. Proposed new Section 142A refers to voluntary patients under the age of 18. In view of the seriousness of the consequences of inappropriate placement of these young persons, it seems reasonable to extend the scope of the clause as proposed. I hope that the Minister will give the amendment sympathetic consideration.

Lord Northbourne: My Lords, I support the amendment. Noble Lords who spoke made the case clearly. It seems to me absolutely incredible and shocking that vulnerable children are put in the very highly disturbed atmosphere of an adult ward. I hope that the Minister can encourage us to think that that will not happen in the future.

Baroness Walmsley: My Lords, I wish to make it quite clear that these Benches support the amendment. Such was the enthusiasm of your Lordships for the amendment that there was no room to add my name to it, but these Benches enthusiastically support it.
	The British Government are a signatory to the UN Convention on the Rights of the Child, which states that,
	"every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so".
	I know that the Government are doing their very best to implement that responsibility. In fact, great progress has been made within the criminal justice system to do that. We also know that it is the Government's intention that children should be in age-appropriate settings when they have mental health treatment.
	Like the noble Earl, Lord Howe, I am relieved to be able to support the amendment without having to make any additional spending commitment. It is clear from Ivan Lewis's statements that the Government have earmarked the necessary resources to go that step further so that no child will need to go into an adult ward in future.
	If we needed any proof that this amendment was necessary, we have only to read the report of the Children's Commissioner, to which reference has been made. The Minister says that the amendment seeks to enshrine good practice in the Bill; the Children's Commissioner's report makes it clear that that is necessary.

Baroness Murphy: My Lords, I have added my name to the amendment. I do not want to speak further about the humanity behind it because I think that almost everyone in the House is agreed on that and it was well exposed today. I want to talk about the practicalities.
	I know that the Government are concerned about amendments that dictate how services should be provided and about the possible extra cost that might suddenly be imposed. In reality, however, we have imposed special legislation for, for example, high-security patients, maternity services and cancer services, so there is absolutely no reason why we should not dictate what services are necessary.
	In terms of practicality, what generally happens is that a child is admitted in an emergency; that is when the situation arises whereby they go into a completely unsuitable adult ward. In practice, all that has to happen is that the primary care trust agrees with the local mental health service that they will, for the moment, until the local facilities have been built, commission a certain number of emergency service beds. Indeed, that happens in most places where they commission emergency service beds from a range of young people's facilities to ensure that in an emergency someone can make the decision about admission, and the money is there to fund it without question.
	The money is being spent already because the person is admitted, so you already have the charge against an admission. Although the cost of a child's admission to a specialist unit is slightly higher, the cost overall is broadly similar. All the amendment would do is signal to mental health services and primary care trusts that they have to make the arrangements. It does not signify that they should make a different sort of service.
	This does not happen at the moment because of a handful of services that simply do not comply; it is evident from the Mental Health Act Commission reports that this is not a generalised problem but a problem with a very few authorities. We are not asking for anything complicated here. I support the amendment.

Baroness Howe of Idlicote: My Lords, I have listened to what has been said on the amendment, and I took part in the debate on Friday on palliative care, where the argument was that if you got rid of the postcode lottery it would put palliative care above other services. This amendment clearly does not do that for these services; there is every reason to put this in the Bill. Having heard some of the stories today, and having seen some of them in the paper, I believe that this is something that the Minister must surely agree to.

Lord Ramsbotham: My Lords, I have tabled amendments concerning one part of the population that needs special treatment, which is those in custody. No group in custody is more in need of improvements to current mental health care than people of juvenile or young offender status—that is, those between the ages of 15 and 21. The services that they get are frankly awful, because there are simply not enough adolescent psychiatrists or trained adolescent nurses available to give the treatment that they need. The assessments are not there. All the things that are set out in the amendment, if adopted, should be adopted on behalf of all those young offenders who get into the hands of the criminal justice system. I strongly support the amendment, because it sets out a very clear blueprint for what the authorities should provide, so I hope that it will be accepted.

The Lord Bishop of St Edmundsbury and Ipswich: My Lords, I add my strong support to the amendment, which is very important. It is to do with focusing the response to young people with particular needs. Lying in the background is the problem that mental health services so often are the poor relation in local health authorities. Therefore, young people can be disadvantaged twice. One hopes that good practice in the field will be encouraged, but statutory provision, which would give strength to that, is practically needed, as we have heard.

Lord Hunt of Kings Heath: My Lords, this has been a short but highly interesting debate. I sense that the House wishes to come to a view on this subject as quickly as possible.
	I thank the noble Lord, Lord Williamson, for his very kind remarks. He has raised some serious matters about the way in which children and young people are treated by our mental health services under the legislation. He identified, as did the noble Earl, Lord Howe, some of the real challenges in ensuring that appropriate services are provided to these vulnerable young people. I also very much take the point that the right reverend Prelate made; he raised the concern that, traditionally and historically, mental health services have not received their due. As he put it, statutory provision is a way of ensuring that that happens. Noble Lords will be weary of me expressing concerns about, in essence, putting statutory requirements in the Bill to provide services, but that is a genuine issue that has to be faced up to.
	The noble Baroness, Lady Howe, referred to one of the best debates that I have taken part in; it took place in your Lordships' House on Friday. I very foolishly tempted the noble Lord, Lord Carlile, to engage with me on the issue of palliative care services. On Friday, all of us—apart from me, once again—were arguing that palliative care is so important. I could have taken the words that the noble Lord, Lord Ramsbotham, used about mental health services in Committee and simply inserted the words "palliative care".
	There are six areas for short debate on today's selection list, all of which will be very interesting if we get to them. However, in all of them, noble Lords will argue that those are the areas that deserve priority. There is a genuine issue about how to provide these services, which are so important. We are dealing with such vulnerable people and there have clearly been major defects in the provision of services in the past; I refer to young people being looked after on adult psychiatric wards although they are vulnerable in the way that the noble Earl, Lord Howe, described. Those are major challenges but they are not solved simply by waving the magic wand of legislation that says, "That will happen no more". That is the issue that separates us.
	We have discussed Scotland on a number of occasions and all of us are interested in, and will be interested in observing in the years ahead, the different approaches and the lessons to be learnt from each system. Section 23 of the Scottish mental health Act requires a child to be placed in age-appropriate accommodation. However, that has not led to the ending of children being placed on adult psychiatric wards in Scotland. My understanding is that the Mental Welfare Commission for Scotland reported in the past quarter that admissions of children to non-specialist wards including adult wards had risen, not fallen. That is not a criticism that I make of Scotland or the Scottish approach. All I suggest is that noble Lords should bear in mind that simply passing legislation that says, "It will not happen", does not mean that the service automatically follows.

Lord Northbourne: My Lords, will the Minister admit that all that we as parliamentarians have the power to do is, alas, to pass legislation? It is up to the Government to make the thing work.

Lord Hunt of Kings Heath: My Lords, I say very respectfully to the noble Lord that that really is a get-out.
	Noble Lords are using our debates—I think that this is my seventh day of debate, although other noble Lords had a further debate at Second Reading—to identify issues and problems that have been in mental health provision for many years. They are clearly seeking to use this occasion to press the Government as much as possible to improve the provision of mental health services. I well understand that that is what this is about. Indeed, if I were back on the Back Benches, I have no doubt that I would be joining in those debates, as noble Lords know that I have a long-standing interest in the provision of better mental health services. However, any Minister standing here still needs to say that, although it would be very easy if parliamentarians could simply pass Bills and amendments saying, "This must be the priority", that cannot be done, because overall discretion has to be given to the Secretary of State to provide services. The Secretary of State must then do his or her best to ensure that those services are provided.

Lord Carlile of Berriew: My Lords, I am puzzled as to why the noble Lord keeps using the word "priority". Those of us who support the amendment, and indeed other comparable amendments, are trying to set standards, not priorities over other things. Surely the word "priority" is rather misleading; if anything, it is a parity, not a priority.

Lord Hunt of Kings Heath: My Lords, I do not agree with that. It seems to me that the code of practice, to which there is statutory reference, is the ideal place to embody standards. If in NHS legislation a Secretary of State is given a general duty to provide services but you detail in specific legislation a statutory requirement in relation to a particular aspect of the service, surely a provider of services is then left with certain statutory provisions that say, "In a certain area, you must provide services", whereas the entire NHS services are governed by a more general duty. In that sense, by specifying in one area that a particular service must be provided, you are prioritising that service.
	I think that noble Lords probably have the gist of my argument and I see that I have been as convincing as ever. I would only say that, as I am glad to report and as other noble Lords have acknowledged, there has been a tremendous advance in providing services for children and young people in the mental health field. We are seeing more in-patient beds being commissioned and more resources being spent. Indeed, the Royal College of Psychiatrists' research unit provides some evidence of that. Noble Lords have referred to the comments of my honourable friend Mr Ivan Lewis; we are committed to doing everything that we can to improve those services.

Baroness Meacher: My Lords, does the Minister regard a 4 per cent increase between 1999 and 2006 in general CAMHS beds as sufficient, bearing in mind the enormous importance, which I think he accepts, of providing the right kind of services to very young people who become mentally ill?

Lord Hunt of Kings Heath: My Lords, I think that I said earlier that major challenges remain to be faced. I would never claim that the provision of those extra beds is sufficient, but it is an indicator of the improvements that are being made, alongside other improvements in relation to CAMHS and mental health services generally. The Government's view is that we signalled our intent to improve services. We believe that the code of practice is the right way to indicate to the health service how those services should be provided and, as I have indicated, we are very wary of accepting the kind of amendment and approach put forward by the noble Lord, Lord Williamson, this afternoon.

Baroness Masham of Ilton: My Lords, should not the rights of the child be paramount?

Lord Hunt of Kings Heath: Yes, my Lords, and that is made absolutely clear in the code of practice. Of course, there is no question about providing as good a service as we can for children and young people, but I do not think that that alters the arguments in relation to the amendment.

Lord Williamson of Horton: My Lords, I am grateful to the Minister for his reply. I am sure that his motivation is very similar to our own. We are trying to improve care and provide appropriate care for children and young people.
	I noted that the Minister pressed two points. He said that putting the amendment in the Bill is no guarantee that it will happen. We all know that one cannot just put something into a Bill and assume that it will happen the next day—most of our legislation probably falls into that category. However, we still believe that it is right to put it into the Bill.
	Before the Minister rose, I tried to answer the point about the specific position of children. Throughout much of our society and in legislation, we treat children and young people quite separately. I do not believe that this is comparable with various other points that might be raised about setting services. I noted that the Minister said that if he returned to the Back Benches he would perhaps join in these debates.

Lord Hunt of Kings Heath: My Lords, to ensure that I do not return to the Back Benches very soon, I need to clarify that. Of course, I would not support the amendment, but I was responding to a general comment from the noble Lord, Lord Northbourne, that of course the passage of a Bill is an ideal way in which to press the Government to improve services in the particular area that is under discussion.

Lord Williamson of Horton: My Lords, I thank the Minister for that clarification. I do not want him on the Back Benches; I want him on the Front Bench, as there is plenty more business to come on which he can give us a helpful hand. In the mean time, I consider that this amendment ought to be in the Bill. I beg leave to test the opinion of the House.

On Question, Whether the said amendment (No. 25) shall be agreed to?
	Their Lordships divided: Contents, 201; Not-Contents, 126.

Resolved in the affirmative, and amendment agreed to accordingly.

Afghanistan: UK Forces

Lord Drayson: My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Defence Secretary. The Statement is as follows:
	"Mr Speaker, on 1 February I announced the forthcoming rotation of our troops in Afghanistan. At that time I undertook, once I had spoken with my fellow NATO Defence Ministers at Seville, to update the House on any further changes to our force structure. That is what I am here to do today."First, however, I want to highlight the progress and achievements in Afghanistan during 2006. NATO has continued its expansion of responsibility for this vital campaign into the more challenging south and east of the country. We have faced down the Taliban in its own backyard, delivering security and bringing the reach of the Afghan Government to places that have hardly seen it before. We have unified the military mission under the leadership of General Richards and the British-led Allied Rapid Reaction Corps. Across Afghanistan we have built schools, mosques, roads, wells, and markets. We have defended and reinforced five years of progress, including the first elections in decades, remarkable improvements in education, and the return of 5 million refugees. "I say this because, before we talk about what more we must do, we should understand what is at risk if we do not continue to live up to the collective commitment we have made to Afghanistan and its people. I am not here to herald this as a job done. I am not painting a glossy picture; our mission in Afghanistan faces serious challenges and the country faces serious problems. But I am here to explain why we must keep working to meet these challenges and secure Afghanistan's future."I have said many times from this Dispatch Box that there is no purely military solution to Afghanistan's problems. What military forces can do, as has been shown right across the country, is increase security. But unless we can help the Afghan Government to bring security to all their people, and convince them that they and NATO are going to defeat the Taliban and others who try to block or destroy progress, everything else we have achieved in Afghanistan will remain at risk. At Seville, NATO's senior military commander, SACEUR, reminded NATO members that it is in the south and east where the security challenge is most acute. He identified a further need for robust, flexible, manoeuvrable combat forces to strengthen NATO commanders' ability to tackle that challenge across these regions."We believe that every NATO partner should be prepared to do more to meet this need. At Seville, some announced they would do so. America promised an additional 3,000 troops. France has offered more close air support. Germany has pledged six reconnaissance Tornados. Lithuania has pledged additional troops. All these contributions are welcome. They build on earlier commitments made at Riga in the autumn, principally by Poland, which committed a battalion to the east. But we must be realistic about how many nations have the ability to take on the tasks facing NATO in the south and east. I have lobbied our partners consistently for more help in these regions, and I will continue to do so. But it is increasingly clear that at present, when it comes to the most demanding tasks in the more challenging parts of Afghanistan, that only we and a small number of key allies are prepared to step forward."This is why we have decided to commit additional forces to Afghanistan. Put simply, the alternative is unacceptable; it would place too great a risk on the progress we have made so far. This is a risk we simply cannot afford to take, both for the sake of Afghanistan and for the sake of our own security. We may be shouldering a greater share of the burden than we might like, but so are others, and we do so in the knowledge that this is a vital mission and one which is directly in our national interest."I now turn to the details of what this decision means in practice. The UK has decided to fill one of SACEUR's most pressing requirements: a manoeuvre battalion for Regional Command (South), an area which covers Helmand—the base and responsibility of the existing UK task force—and the strategically vital neighbouring province of Kandahar, plus the further provinces of Uruzgan, Zabul, Nimruz and Daykundi."We propose to deploy a battle group comprising elements of an infantry battalion, the 1st Battalion the Royal Welsh—The Royal Welch Fusiliers—which will be augmented with a company of Warrior infantry fighting vehicles from 1st Battalion Scots Guards. It will include additional artillery, including a regimental HQ and a battery of light guns from 19th Regiment Royal Artillery, a brigade surveillance group drawn from 5th Regiment Royal Artillery and a troop of guided multiple-launch rocket systems from 39th Regiment Royal Artillery. We shall also deploy additional reconnaissance and surveillance capabilities, four more Harrier GR9s to provide close air support, four Sea King helicopters from 846 Naval Air Squadron to increase our support helicopter capacity and another C-130 Hercules. Some of the forces deployed will be reservists, although I am not yet in a position to inform the House of how many. I will write to confirm that."Overall, that adds up to nearly 1,400 additional personnel. Some will deploy from the roulement in May, but the majority will deploy during the course of the summer. They will be based mostly in Helmand, with some at Kandahar airfield, although they will provide NATO commanders in RC (South) with a flexible capability for use across the southern region. In total, our forces in Afghanistan will increase from about 6,300 to settle at about 7,700 personnel. The current planning assumption remains that those forces are committed until 2009."I am well aware of the pressure under which that will continue to put our Armed Forces. I have made clear in the past that the Government clearly recognise how much we are asking of them. I want to take the opportunity to say again on behalf of the Government how much we admire the professionalism, skill and bravery with which they do the hard and dangerous work we ask of them. I repeat that ensuring that they have the support and equipment they need remains my highest priority. I also want to make clear that we would not make the decision to commit extra forces unless it was in accordance with unequivocal military advice. I and the Chiefs of Staff agree that this additional commitment is manageable."Before closing, I want to address some misconceptions about this decision which have circulated over recent days. The first is that our recent decisions on Iraq were driven by our desire to do more in Afghanistan. That gets things the wrong way round. Our planned drawdown in Iraq, announced by my right honourable friend the Prime Minister last week, is driven by conditions on the ground. It is the situation in Iraq that determines what we do there, not the situation in Afghanistan. But of course our plans for Iraq and our other operational theatres, including the Balkans, affect our ability to do more in support of NATO in Afghanistan. In that context, our decision last week on Iraq makes today's decision that much easier."The second misconception is that that enhancement reflects poor planning in the first place. That is simply not true. As a general point, it is wrong to suggest that any enhancement must reflect poor planning. Inevitably, much is learned during a deployment, especially in the early stages, and the force structure should adapt. That is what happened last summer. But it is a straightforward error to interpret today's decision as implying anything about the adequacy of the Helmand task force. That force is clearly up to the job: it overmatched the Taliban in every engagement last summer, and over the winter it has been able to take the fight to the Taliban on our terms, while at the same time securing the area around the provincial capital, and also securing vital reconstruction projects such as the Kajaki Dam. Today's decision is a commitment to the southern region as a whole. These additional forces will meet NATO's requirement for troops who can work across the region, in Kandahar and elsewhere. They provide commanders with greater flexibility, and greater capacity to support the Afghan military while they develop the skills and confidence to do this vital work for themselves, which remains, as I have said before, our long-term exit strategy."I assure the House that, in announcing this significant additional commitment, my resolve to secure contributions from others to share this burden remains undiminished. But I put it to the House that we must protect the progress we have made so far, and protect the Afghans' own hope and determination. That is this Government's intention. We believe in this mission, we believe in the international community's aims in Afghanistan, and we are proud to play our full part in achieving them".

Lord Astor of Hever: My Lords, I thank the Minister for repeating the Statement. This announcement comes as no surprise to us; it has long been clear that more forces are needed in Afghanistan to maintain sufficient security levels to allow redevelopment and to withstand the offensive of a rejuvenated Taliban. Indeed, General Richards requested more troops this time last year but was denied them. We on these Benches share the Statement's admiration for the professionalism, skill and bravery with which our Armed Forces do the hard and dangerous work in Afghanistan. Indeed, the fighting there has been the fiercest since the Korean War. Can the Minister confirm that our troops will get the resources and equipment they need? Some of the equipment there is now very tired, and helicopters are flying at the limit of their hours. Most of these new troops are earmarked for Helmand, where the fighting is at its fiercest and most dangerous. This is hardly a reduction in the overall workload of the Armed Forces, notwithstanding the Government's withdrawal of troops from Iraq.
	Only a few weeks ago, the Government announced that they would be sending 600 extra troops to Afghanistan. Today, this figure has more than doubled. The Government have failed to get our NATO allies to pull their weight and help to supply the extra manpower needed. This country and a small number of allies are already contributing more than our fair share, both in numbers and the dangers faced. At this point, I unreservedly compliment the Canadians, whose ongoing efforts in Kandahar in very hostile conditions are essential to the success of the NATO mission. However, I refer to some of our European allies, who, in the words of one Army officer to whom I spoke, are offering a mere "ornamental presence". This very public show of indifference on the part of powerful nations has encouraged the Taliban's resurgence. This is the third or fourth time that British troops have had to reinforce since the war began, while some of our allies remain reticent. What are the Government doing to address this imbalance? Are we going to continue to carry the can for our NATO partners, who are accepting the benefits of the NATO security guarantee but leaving it to our taxpayers to meet the financial burden and our troops the military burden?
	Given the current levels of overstretch, our concerns must be for the safety of the troops already deployed and that their efforts are neither compromised nor wasted. Senior officers have commented over the weekend that, even with these reinforcements, troop levels are still unlikely to be enough. If, after sending these reinforcements, commanders on the ground request extra troops at some point in the future, will the Government be able to find them, and will they send them? One result of the shortage of troops is the increased reliance on airpower, which has caused higher civilian casualties. Indeed, last year this led to the highest casualty figure since 2001. I myself have spoken to several soldiers of all ranks who have returned from Afghanistan, and they told me how effective they found the Apache helicopter. Can the Minister reassure the House that there will be no reduction in either the number of Apaches or the budget for the vital job of training Apache pilots?
	The Afghanistan campaign can be considered a success only if there is lasting reconstruction in the area. Hearts and minds can be won only if the local people see real and visible benefits arising from our continued presence. I was heartened to hear a brief mention in the Statement of rebuilding projects, but have the Government appreciated the significance of reconstruction, and can they support their words with actions? Soldiers returning from Afghanistan say that they have the impression that DfID has effectively pulled out of the area. Can the Minister confirm whether this is the case? If DfID has pulled out, it is essential that the Government seriously consider other options. Will they consider giving the Army a larger reconstruction budget with which it can help to rebuild the area? Further, can the Government persuade their NATO allies, who are so reluctant to commit troops, instead to commit to the reconstruction effort? If the good work of our troops, not to mention a death toll of 48, is not to be in vain, there simply must be an effective reconstruction campaign. We have spent 10 times as much on military operations as on reconstruction. Only when there is evidence of successful reconstruction will there be local support.

Lord Garden: My Lords, I add my thanks to the Minister for repeating the Statement; however, I am absolutely astonished that we are only being told this today. On Tuesday of last week the Minister came to the House to talk about military matters, on Wednesday the Leader of the House repeated the Prime Minister's Statement on troop reductions in Iraq, and on Thursday we had a five-hour debate on Iraq, with the noble Lord, Lord Triesman, answering for the Government. By that evening the media had wind of this announcement and all our phones were ringing. Afghanistan changes were not mentioned by any of the Ministers last week, and the Statement argues that the decrease in Iraq and the increase in Afghanistan are unrelated. That is a totally disingenuous argument. As the Minister knows, noble Lords from all sides of the House have been greatly exercised about the over-tasking of our military over a very long period. Any small relief that might have resulted from reductions in Iraq will now be negated by the increase in Afghanistan. The argument that the Chiefs of Staff believe that this is "manageable"—the word used in the Statement—it simply does not wash. It is the responsibility of the Government to set the commitment of the Armed Forces at a level which is sustainable for the resources they have been given. The Government have exceeded that level for the past eight years and seem not to care.
	Members on these Benches support a focus on the Afghanistan operation and believe that the forces needed to do the job must be provided if we can. We do not enter into the counterproductive abuse heaped by some on our NATO allies. Indeed, the Statement this time is more critical in that regard. They held the fort in Afghanistan while we were away invading Iraq. Those forces are there still in the north and the west, and they are present in much larger numbers in the Balkans, while European forces are in Lebanon when UK forces are not. If we end up in an arguing match with our NATO allies, we will damage the alliance.
	We were very much in the lead in our enthusiasm for the new plan in the south and east of Afghanistan and we therefore had a duty to ensure that we had adequate forces on call before starting. At least now we are trying to establish the appropriate force with the reserve that we should have had in the first place.
	I too have a number of questions for the Minister. The Statement talks about four extra Sea King helicopters to support this manoeuvring force over most of the south of Afghanistan. I shall not go into the technical capabilities of the Sea King helicopter, but it seems a fairly massive task for the very small and inadequate force which will be asked to manoeuvre around. We still need more helicopters, and these will not be the answer to the problem, particularly in the summer. How is the Minister getting on with his longstanding task of procuring extra support helicopter capability? What effect will all this have on the air bridge? Has that been looked at? How is he getting on with procuring more for the air bridge?
	It seems strange that we do not have any breakdown in the new force structure between reserves and regulars, but we will learn about it later. How is it that we have put together a force where we do not know which are regulars and which are reserves?
	What effect will the problems with the Nimrod force, which is currently in difficulty, have on our operations in Afghanistan?
	With regard to the morale of our troops, this may sound as if it is a long way from operations in Afghanistan, but it will be important to them: when will the Armed Forces Pay Review Body report be published? It is now more overdue than it has ever been, and it will be taken by the troops as a signal of how much the Government value what they are doing.
	How do the Government reconcile the claim that we should be operating within the defence planning assumptions by the end of this year with the new announcement? Has that gone back as well? When was this new level of force decided? What notice did the Government have that they had to increase the forces to this level?
	Has there been any progress between the US and the UK on agreeing an appropriate strategy for the opium harvest? That affects what these troops will be engaged in. Has there been any progress on control of the Afghan-Pakistani border?
	There are many questions that need to be answered. While we support this deployment, I repeat what I said in Thursday's Iraq debate: dividing our assets between two campaigns is not a recipe for success in either. We need to withdraw from Iraq and concentrate on Afghanistan. Today's Statement has strengthened my view that time is running out, and it is the British Armed Forces that will suffer.

Lord Drayson: My Lords, I am grateful for the general support the noble Lords opposite have given to this announcement on the decision to strengthen our forces. A number of specific questions have been asked, which I aim to answer quickly where I can.
	On the general theme, we agree with the point the noble Lord, Lord Garden, made about the difficulty of the two enduring medium-scale operations carrying on at once. We accept that we are operating beyond the planning assumptions. However, we believe that this has to be done. We have looked carefully at these pressures. The Secretary of State has gone into considerable detail in reviewing the capacity of our Armed Forces to cope with that pressure, and we have concluded, on the basis of military advice that we have considered, that we can do this. When we say the situation is manageable, we believe that it is, but we accept that it cannot continue indefinitely. The balance between the resources and the commitments of our Armed Forces is a point that we take on board. We are not ignoring that; we are working on it very carefully.
	This deployment is in response to the requests made by NATO commanders at the summit in Seville in February, when it was made clear that those commanders required additional resources. It is impressive that this country is able to respond in this way and to provide these significant extra resources in a timescale where troops will begin deployment in April and stay through the summer until the end of the year.
	I take on board the points made about the way in which certain of our NATO allies have provided significant resources and have lost people in this campaign. It is right that we recognise the contribution made and the losses suffered by our NATO partners while expressing the clear need for NATO to come together to deliver the resources for which its commanders are asking. We, and others, are showing leadership; we are doing our bit.
	It is not right for me, standing at the Dispatch Box, to speak for other nations. I believe that all of us in this House are fundamentally clear that we support the NATO alliance. It has its difficulties but it is not failing. We need to support it, and Afghanistan is probably its greatest test. Making the decisions we have taken today and clearly supporting the NATO alliance is clearly the right thing to do. Despite the fact that some of our NATO partners are not doing so, we need to continue to press them behind closed doors.
	The decision was in response to the request made at the Seville summit in February. The announcement has been made to the House at the first opportunity since the decision was made by the Cabinet.
	I confirm that our troops will be provided with the resources they need. The Prime Minister, the Secretary of State and I, as Minister for Defence Procurement, have said that we will ensure that our troops get the resources they need. But it is not for Ministers to second-guess what military commanders require; it is for the military commanders, through the chain of command, to decide what is needed.
	A point was made about pressure and the fact that some of the equipment being used is getting tired. That is a fair point. The recuperation of equipment is towards the top of my agenda in terms of my responsibilities as Minister for Defence Procurement.
	There will be no reductions in the number of Apache helicopters. It is interesting that in a pretty controversial defence procurement project, a number of people criticised the investment in Apache helicopters and mentioned their cost but, my goodness, they have been shown to be a formidable and effective piece of military equipment.
	On the four extra Sea Kings, the noble Lord, Lord Garden, with his extensive experience in helicopters, will know about the operation limitations presented to helicopters operating hot and high in Afghanistan. We have addressed that in the changes we have made and are making to the Sea King helicopters. They will primarily work on medical evacuation tasks to release medium-lift and other helicopter duties. That is the thinking.
	We have recently had a discussion about the challenges we face regarding the air bridge. As I have reported to the House, we have an increased focus on improving the service which is being undertaken under the air bridge and believe that we will be able to carry out this deployment effectively.
	I am concerned about the Nimrods. Ongoing concerns about certain aspects of the fuel system on board are getting very careful attention. As I speak, the Nimrods have been able to be released to carry out their duties in Afghanistan.
	I do not have an update for the House on the timing of the pay review report. If I can get some information, I will write to noble Lords with an answer.
	Finally, I should like to say a few words about reconstruction. It is correct that the key to strategic success in Afghanistan is for our forces to provide the military capability to take on and beat the Taliban to create the security situation in which the rule of law, democratic governance and reconstruction can take place. We must make the comprehensive approach, as it is called, work effectively on the ground. It is difficult; we are having to adapt in terms of our relationship with our partners in DfID and the NGOs. Frankly, it is important to recognise that the troops often have to do certain short-term reconstruction projects under fire so that they create an environment in which the longer-term projects, led by DfID and so forth, can take place. However, there is no truth in the claim that DfID has pulled out. This remains a partnership that is extremely important in the short and the long term, and in its ability to carry out reconstruction under fire, which, for example, our engineers are undertaking in Afghanistan. We are committed to that approach in the long term.

Lord Craig of Radley: My Lords, I thank the Minister for repeating the Statement and for the extensive responses to the questions and points made from the opposition Benches. I do not think that it is any surprise that there has been this need for further deployment of front-line troops into Helmand province. General Richards, at his handover, and many experienced observers, have been convinced of the need for additional effort to face down the Taliban.
	Can the Minister reassure the House that the commanders in theatre have not been requesting more than the 1,400 or so extra forces mentioned in this Statement and that it is not the intention of Her Majesty's Government to increase yet further the number of forces deployed to Afghanistan before there is a considerable reduction in those deployed in Iraq? As the Minister has observed and acknowledged, we are extremely extended by having to mount operations in two theatres for this much extended period. Therefore, it would be very reassuring to know that there is no intention to increase further in Afghanistan before we have achieved on the ground considerable reduction of our effort in Iraq.

Lord Drayson: My Lords, the noble and gallant Lord has asked a question which reinforces one asked by the noble Lord opposite, which I did not answer initially. In answer to this question, I shall be as clear as I can on the two related aspects of the theatres and the decision that has been taken. It is clear to me that of course at one level we must consider the operational pressure of our Armed Forces in the round, across the world, in all operational theatres, which we do. It would make no sense for us in the Ministry of Defence to do otherwise: you have to look at your commitments in totality. But we must not confuse that with a sense that we make decisions on one theatre related to what is taking place in another. Frankly, we cannot do that. We have to recognise that the situation in Iraq and the conditions on the ground require us to make decisions based on those circumstances. The pace of change in Iraq and Afghanistan progresses, and co-ordinating the two is not practical. We have to face the conditions in each theatre separately. But we need to make decisions about the deployment of our resources and be very mindful of the effect on our Armed Forces over the long term. We cannot go on operating beyond the planning assumptions indefinitely. As the noble and gallant Lord said, we are starting to see the effect on wear and tear of equipment.
	On where we stand today, a lot of careful consideration has gone into thinking about whether this extra deployment in Afghanistan can be made taking into account the situation in Iraq. We will have to respond to Afghanistan based on what happens through this year. We cannot say that being able to respond to Afghanistan will be done in a way which is linked to Iraq, much as we would like to be able to do. However, we can make absolutely sure that these decisions we take in the round can be managed by our Armed Forces, but we need to make sure that they have the resources in the long term for the commitments which we require them to face.

Lord Marlesford: My Lords, the Minister referred, rightly in my view, to our bearing a greater share of the burden than we might like. This is a NATO enterprise, unlike Iraq. Should the British Government not seek to establish for this venture and future NATO ventures a convention that all members of NATO contribute to the financial cost in proportion to their GDP, including of course the countries that are providing military operations or facilities, and that those countries that are providing military facilities for such NATO operations should be reimbursed 100 per cent from that central fund? It is totally unacceptable for us to have more not only of the military burden but of the financial burden than other members of NATO.

Lord Drayson: My Lords, the noble Lord makes an interesting suggestion, and I shall go away, think about it and discuss it with my colleagues. It would raise difficult ethical questions in considering how to balance those countries that provide troops and assets and that are in harm's way, taking losses and casualties, against those that provide finance. However, I shall take away and consider the noble Lord's suggestion with regard to practicalities, and respond.

Lord Ramsbotham: My Lords, this morning a number of us were privileged to hear and take part in a discussion with a most able and talented young woman called Clare Lockhart, who has recently returned from being an adviser to General Richards. Before that, she worked for the UN in Afghanistan from 2001 to 2005 and was an adviser to the Afghan Government on reconstruction.
	Some very interesting subjects came up during the discussion. One was the fact that there did not appear to be one overarching strategy for progress in Afghanistan. The UN had a programme, the EU had a programme, NATO had a programme, the United States had a programme and we had a programme—and none of them came together.
	Another hugely interesting subject came up during the question of reconstruction—that there did not seem to be any co-ordination of regional support for reconstruction, such as what the Gulf states might contribute, what Iran with its asphalt might contribute to road-building, or what Uzbekistan or other countries might do. In this House, we tend to talk in penny packets about little bits of military reinforcement and little bits of what we or DfID might do. That does not seem to be really satisfactory. Unless there is an overarching strategy within which each contributor can see its part and where it is going—especially in the field of reconstruction—we shall go on having this discussion over and again as little bits are added or taken away in the years to come.
	I know that it is not specifically in the Minister's patch, but does he feel that this addition to our forces, which is enormously welcome—although not to the forces themselves, because they are overstretched—is part of something overarching, or is it just a one-off effort?

Lord Drayson: My Lords, the noble Lord highlights a very important point. However, surely it should be—and is—the role of the Afghan Government to provide that overarching clarity. We are there with the NATO mission of 36 countries in support of the Afghan Government.
	When I last visited Afghanistan, I got the impression that there was more clarity than the noble Lord has been told, because I saw how the Afghan development zones had been identified. That seemed to me an effective structure for aligning definite areas—or taking areas in the country and applying a comprehensive approach of reconstruction with military effect and establishment of governance, and then spreading out from those zones. That seemed an effective and pragmatic way in which to effect change.
	The progress is regional. We have seen good progress in the north and west, but it is more challenging in the south and east. We are now addressing those issues, but this is a difficult project in some areas. The international community is learning how to carry out this type of coalition effort effectively as part of the comprehensive approach.

Lord Blaker: My Lords, I support my noble friend on the Front Bench in paying tribute to our troops in Afghanistan, whose performance has been absolutely magnificent. I am glad that he mentioned the Canadian performance. I believe that, proportionately, the Canadians have suffered as many casualties as we have—I declare an interest as a former Canadian soldier—which is in the Canadian tradition. But the performance of NATO in general has been profoundly disappointing. Many of the NATO countries, which could have been expected to do better, are not pulling their weight. Are some of them still exercising caveats about what their forces are allowed to do? I remember that on a previous occasion we were told that the German planes were not allowed to fly at night. This is particularly relevant since the Minister has announced that they are providing more aircraft. But my main point is: if there is a continuing lack of performance by NATO, will not the Americans in due course lose interest in it and will they not resort to coalitions of the willing, which is what happened for a while in the Yugoslav campaign?

Lord Drayson: My Lords, certain nations still exercise caveats as the noble Lord described. We are pressing our NATO partners to have close alignment of rules of engagement for NATO commanders for the obvious reasons that we have discussed in this House. The noble Lord reiterated the recognition of the Canadians' performance. He is right: the Canadians have done, and are doing, an absolutely outstanding job, but so have a number of other countries. I shall not get into the business of specifying partners within the NATO alliance. We need to build on the successes that we have had, persuade those who are not contributing as much as they should and together support the alliance to rebuild Afghanistan.

Lord Wright of Richmond: My Lords, I apologise for not having been here for the Statement and also apologise if it covered the question that I ask. Has serious thought been given to using some of the poppy crop for pharmaceutical purposes in order to reduce the hardship that undoubtedly follows from the destruction of the poppies?

Lord Drayson: My Lords, on the face of it, it seems ridiculous that that should not happen when there is a shortage of pharmaceutical-grade narcotics. However, the matter has been looked into very carefully indeed. It is the policy of the Afghanistan Government not to support such an initiative because of the practical challenges that it would present. I sympathise with the noble Lord's suggestion. It should be possible to do what he suggests.

Lord Luke: My Lords—

Lord Campbell of Alloway: My Lords—

Baroness Tonge: My Lords—

Baroness Crawley: My Lords, we have not yet heard from the Liberal Democrats.

Baroness Tonge: Thank you, my Lords. Further to the remarks of the noble Lord, Lord Ramsbotham, and because I am not quite clear on this, will the Minister clarify exactly what the primary purpose of the campaign in Afghanistan is? If it is to get rid of the Taliban, as some people say, how many decades does he think that will take?

Lord Drayson: My Lords, as we have said from the very beginning, its purpose is to support the transition of that country to become a stable and democratic state where its people feel free of the mixture of terrible wars, the narcotics trade, which has infiltrated the country, and the decades of despair, which created an environment which allowed the Taliban and others to launch attacks—for example, that of 9/11. Our policy is clear: to support that country in its journey to become an effective democratic state. We do not know how long it will take, but under the UN mandate, as part of NATO, this is clearly a campaign that we can be effective in, and we can be successful. As part of it, we have to beat the Taliban. We have shown a capability to do that over the past year. We are taking the fight to the Taliban now, and that is one part of the support that the country needs to return to democracy.

Lord Campbell of Alloway: My Lords, what is being done about closing the border crossings, which are being used by the Taliban to get here and there and escape? Is that a matter for the Afghan Government? Can we do anything about it? What is the position?

Lord Drayson: My Lords, that is a very important point, but we need to recognise the geographic challenges in the nature of the territory and the borders. It is very difficult to police those areas. It is the responsibility of the Afghan Government supported by the Afghan forces, with the coalition partners in support, and also of those countries that border Afghanistan.

Lord Luke: My Lords, can the Minister now respond to the request of my noble friend for reassurance that there will be no reduction in the budget for the vital job of training Apache pilots?

Lord Drayson: Yes, my Lords.

Lord Stoddart of Swindon: My Lords, the noble Lord said that he did not know how long we were going to be in Afghanistan to do the job that we think we are doing there. Does that mean that there is a complete open-ended commitment to stay in Afghanistan and occupy Afghanistan for so long as the Afghan Government themselves cannot control their own country and their own borders? If so, how many troops will eventually be involved, and what cost will there be to the British taxpayer?

Lord Drayson: My Lords, we are not occupying Afghanistan; you cannot occupy a country with 7,700 troops. The answer that I gave to the noble Baroness was that we do not know how long it will take for Afghanistan to make this transition, as I called it, to democracy. I am being realistic with the House. At the same time, that is not saying that there is an open-ended commitment. The two are separate. The operation that we are embarked upon is one that we set out for three years, going through to 2009. We need to be realistic about the challenge that the United Nations and NATO have undertaken. It is a challenge that we can be successful in, but it would be unrealistic to predict the timescales.

Earl Attlee: My Lords, I am grateful to the Minister for repeating the Statement, and I welcome it to an extent. Does he agree that there are two disappointments in the Statement? First, we have been unable to secure an agreement with the United States to reduce our forces in Iraq much more, to be able to increase in Afghanistan, where we can be successful. We have no troops available elsewhere. Secondly, many other NATO nations are not contributing in the way that we have discussed, and I will say more about that later. Does the Minister agree that by the end of this year the situation will not be much different from what it is now? It is not a question of just one more push; this campaign will have to be sustained for several years. We must be patient and not expect instant results in some decisive battle with the Taliban.
	The Statement refers to engagements with the Taliban. Does the Minister agree that the Taliban body count is not a measure of success? Success will derive from the comprehensive approach that he mentioned, which should eventually make the Taliban irrelevant. Does he agree with the point made by my noble friend Lord Astor of Hever about reconstruction, funds and facilities for our military forces? At present, it is extremely difficult for NGOs to access certain parts of Helmand province. It may be necessary for our forces to do more reconstruction directly themselves, especially following damage caused by combat operations.
	Finally, the Minister has commented upon air trooping. If we are to keep large numbers of troops deployed on overseas operations, we must have modern wide-bodied jets to get them to and from theatre and to take them on leave when they expect to be on leave. I have written to the Minister on that point and I look forward to his reply in due course.

Lord Drayson: My Lords, I will try to rattle through answers to the noble Earl's questions. I absolutely agree that we need modern jets, and as quickly as possible. The jets that we have are too old, which puts a lot of pressure on the air bridge. I agree that we need to be patient, which is why I answered the noble Baroness, Lady Tonge, in the terms that I did. The noble Earl is absolutely right—it is not about body count; it is about the effectiveness of the comprehensive approach, and about the military providing the security to enable reconstruction to take place. He is right to say that in certain areas it is not possible for the NGOs to operate—it is too dangerous. In those circumstances, however, it is important for reconstruction to take place and that then puts pressure on our combat engineers to be able to do that.
	I have already touched on questions relating to other NATO partners not contributing enough, but there is no disappointment relating to the securing of an agreement with the Americans on our forces in Iraq. We are responding to the situation on the ground in Iraq in a way that is appropriate to that theatre. We need to, and are, doing the same in Afghanistan. The two are linked in the sense that we have to make sure that we have the force balance that we need and that we can sustain it. We recognise the pressure that we are under—this cannot carry on indefinitely.

Mental Health Bill [HL]

Consideration of amendments on Report resumed.

Baroness Barker: moved Amendment No. 26:
	After Clause 21, insert the following new Clause—
	"Conflicts of interest
	(1) The 1983 Act is amended as follows.
	(2) In section 11 (general provisions as to applications), after subsection (1) insert—
	"(1A) No application mentioned in subsection (1) above shall be made by an approved mental health professional if the circumstances are such that there would be a potential conflict of interest for the purposes of regulations under section 12A below."
	(3) In section 12 (general provisions as to medical recommendations), in subsection (1), after "this Part of this Act" insert "or a guardianship application".
	(4) In that section, for subsections (3) to (7) substitute—
	"(3) No medical recommendation shall be given for the purposes of an application mentioned in subsection (1) above if the circumstances are such that there would be a potential conflict of interest for the purposes of regulations under section 12A below."
	(5) After that section insert—
	"12A Conflicts of interest
	(1) The appropriate national authority may make regulations as to the circumstances in which there would be a potential conflict of interest such that—
	(a) an approved mental health professional shall not make an application mentioned in section 11(1) above; (b) a registered medical practitioner shall not give a recommendation for the purposes of an application mentioned in section 12(1) above.
	(2) Regulations under subsection (1) above may make—
	(a) provision for the prohibitions in paragraphs (a) and (b) of that subsection to be subject to specified exceptions; (b) different provision for different cases; and (c) transitional, consequential, incidental or supplemental provision.
	(3) In subsection (1) above, "the appropriate national authority" means—
	(a) in relation to applications in which admission is sought to a hospital in England or to guardianship applications in respect of which the area of the relevant local social services authority is in England, the Secretary of State; (b) in relation to applications in which admission is sought to a hospital in Wales or to guardianship applications in respect of which the area of the relevant local social services authority is in Wales, the Welsh Ministers.
	(4) References in this section to the relevant local social services authority, in relation to a guardianship application, are references to the local social services authority named in the application as guardian or (as the case may be) the local social services authority for the area in which the person so named resides."
	(6) In section 13 (duty to make applications for admission or guardianship), in subsection (5), after "section 11(4) above" insert "or of regulations under section 12A above"."

Baroness Barker: My Lords, the amendment deals with conflicts of interest. In Committee, I said that in Section 12(3) of the 1983 Act there was a lack of clarity on how conflicts of interest were dealt with. The amendment deals with two issues relating to that matter. The first is the circumstances in which a doctor, because of their position in relation to the applicant, the patient or another practitioner providing medical recommendations, may not provide medical recommendations. That is particularly important because of the proposals in the Bill to change the role of the ASW and the widening of the new role of associated mental health professional.
	Secondly, for that reason, the amendment includes a regulation-making power that will enable the Government, perhaps at some time in the future, to widen the scope of the law concerning conflict of interest to a larger group of professionals than has been the case. There is need for complete clarity on how conflicts of interest are dealt with, particularly when people may be members of the same multi-disciplinary team. The regulation-making power would enable the provisions to be expanded at a future date without any need to resort to primary legislation. In moving the amendment, I place on record my thanks to officials who have helped with its formulation. I beg to move.

Baroness Royall of Blaisdon: My Lords, I thank the noble Baroness, Lady Barker, for tabling such a sensible set of amendments. We agree with her that the regulation-making power that the amendment would introduce would give the flexibility to bring up to date the provisions about conflicts of interest for professionals concerned with applications, and to keep these provisions up to date in the light of future developments in service delivery. I hope that your Lordships will join me in supporting the amendment.

On Question, amendment agreed to.
	[Amendment No. 27 not moved.]

Lord Carlile of Berriew: moved Amendment No. 28:
	After Clause 21, insert the following new Clause—
	"CHAPTER 2A Criminal justice system amendments
	Court Mental Health Report for those remanded on bail
	Before section 35 (remand to hospital for report on accused's mental condition) of the 1983 Act, insert—
	"34A Remand on bail for a mental health report
	(1) In relation to the Crown Court, this section applies to a person who—
	(a) has been sent for trial before the court for an offence punishable with imprisonment and has not yet been sentenced or otherwise dealt with for it (unless he has been convicted of the offence and the sentence is fixed by law), (b) has been committed to the court to be sentenced for such an offence and has not yet been sectioned or otherwise dealt with for it, or (c) has been committed to the court under section 43 and has not yet been dealt with under that section.
	(2) In relation to a magistrates' court, this section applies to a person who has appeared before the court charged with an offence punishable on summary conviction with imprisonment and has not yet been sentenced or otherwise dealt with for it.
	(3) Subsections (4) and (5) apply if the court—
	(a) remands on bail a person to whom this section applies, and (b) is satisfied on the evidence of a registered medical practitioner that there is reason to suspect that the person is suffering from mental disorder.
	(4) The court may require the appropriate authority to arrange for an approved clinician to prepare a report on—
	(a) the person's mental condition, or (b) the appropriate medical treatment for that condition, (or both) in order to assist the court in dealing with the person for the offence.
	(5) The court may specify any particular matters which are to be included in the report (including an assessment of the risk posed by the person to members of the public).""

Lord Carlile of Berriew: My Lords, I shall speak to this amendment only briefly; we have already had a debate on its subject matter. I simply want to glean whether there has been any movement on the part of the Government. The proposal would provide a smoother passage of some cases through the courts. I hope that the Government share that aim. I beg to move.

Lord Hunt of Kings Heath: My Lords, the noble Lord invites me to give a short response. I am afraid that we were not moved by the noble Lord's eloquence in Committee or when he described himself as astonishingly and wretchedly depressed by my response, because there is legislative provision to achieve what he wants. However, I accept that behind his amendment is an issue about problems that the courts have had. That is down to good practice rather than legislative requirement. I understand some of the practical issues that face courts when dealing with the kind of problems that the noble Lord raised in Committee.
	My department and the Home Office commissioned a report on the state of court psychiatric schemes, which was published in September 2005. The report found that provision had grown up piecemeal. We need to do all that we can to even out that practice. Models of good practice in co-operation and commissioning are being identified and evaluated. A pilot has also been established based on a service level agreement for the provision of psychiatric reports to courts in the south-west. Evaluation of the pilot is due for completion in 2008 and will provide a good practice guide for other regions of the Courts Service.
	We are not complacent about the issues that the noble Lord raised. We believe that this is best done through best practice. A pilot is in place and we will use its results to spread good practice throughout the court system.

Lord Carlile of Berriew: My Lords, I am grateful to the Minister for his very helpful response. As he realises, I am concerned about ensuring uniform good practice in courts. Delays with psychiatric reports are very much to the detriment of mentally disordered defendants and cause delays in courts, which these days—in the Crown Court at least—cost between £15,000 and £20,000 a day to run. I hope that the pilot will prove successful and that, if it is, it can be rolled out quickly throughout all the circuits so that these difficulties will no longer occur. Having regard to the Minister's helpful assurance of progress, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 29 not moved.]

Lord Hunt of Kings Heath: moved Amendments Nos. 30 and 31:
	After Clause 25, insert the following new Clause—
	"Electro-convulsive therapy, etc.
	After section 58 of the 1983 Act insert—
	"58A Electro-convulsive therapy, etc.
	(1) This section applies to the following forms of medical treatment for mental disorder—
	(a) electro-convulsive therapy; and (b) such other forms of treatment as may be specified for the purposes of this section by regulations made by the appropriate national authority.
	(2) Subject to section 62 below, a patient shall be not be given any form of treatment to which this section applies unless he falls within subsection (3) or (4) below.
	(3) A patient falls within this subsection if—
	(a) he has consented to the treatment in question; and (b) either the approved clinician in charge of it or a registered medical practitioner appointed as mentioned in section 58(3) above has certified in writing that the patient is capable of understanding the nature, purpose and likely effects of the treatment and has consented to it.
	(4) A patient falls within this subsection if a registered medical practitioner appointed as aforesaid (not being the approved clinician in charge of the treatment in question) has certified in writing—
	(a) that the patient is not capable of understanding the nature, purpose and likely effects of the treatment; but (b) that it is appropriate for the treatment to be given; and (c) that giving him the treatment would not conflict with— (i) an advance decision which the registered medical practitioner concerned is satisfied is valid and applicable; (ii) a decision made by a donee or deputy or by the Court of Protection; or (iii) an order of a court.
	(5) Before giving a certificate under subsection (4) above the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient's medical treatment, and of those persons one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner nor the responsible clinician.
	(6) Before making any regulations for the purposes of this section, the appropriate national authority shall consult such bodies as appear to it to be concerned.
	(7) In this section—
	(a) a reference to an advance decision is to an advance decision (within the meaning of the Mental Capacity Act 2005) made by the patient; (b) "valid and applicable", in relation to such a decision, means valid and applicable to the treatment in question in accordance with section 25 of that Act; (c) a reference to a donee is to a donee of a lasting power of attorney (within the meaning of section 9 of that Act) created by the patient, where the donee is acting within the scope of his authority and in accordance with that Act; and (d) a reference to a deputy is to a deputy appointed for the patient by the Court of Protection under section 16 of that Act, where the deputy is acting within the scope of his authority and in accordance with that Act.
	(8) In this section, "the appropriate national authority" means—
	(a) in a case where the treatment in question would, if given, be given in England, the Secretary of State; (b) in a case where the treatment in question would, if given, be given in Wales, the Welsh Ministers.""
	After Clause 25, insert the following new Clause—
	"Section (Electro-convulsive therapy, etc.): supplemental
	(1) Part 4 of the 1983 Act (consent to treatment) is amended as follows.
	(2) In section 58 (treatment requiring consent or a second opinion)—
	(a) in subsection (1)(b), after "section 57 above" insert "or section 58A(1)(b) below", and (b) in subsection (3)(b), before "has not consented to it" insert "being so capable".
	(3) In section 59 (plans of treatment), for "or 58" substitute ", 58 or 58A".
	(4) In section 60 (withdrawal of consent), for "or 58", substitute ", 58 or 58A".
	(5) In section 61 (review of treatment)—
	(a) in subsection (1), for "or 58(3)(b)" substitute ", 58(3)(b) or 58A(4)", and (b) in subsection (3)— (i) for "or 58(3)(b)" substitute ", 58(3)(b) or 58A(4)", and (ii) for "and 58" substitute ", 58 and 58A".
	(6) In section 62 (urgent treatment)—
	(a) in subsection (1), for "and 58" substitute ", 58 and 58A", and (b) in subsection (2), for "or 58" substitute ", 58 or 58A".
	(7) In section 63 (treatment not requiring consent), for ", not being treatment falling within section 57 or 58 above," substitute ", not being a form of treatment to which section 57, 58 or 58A above applies"."
	On Question, amendments agreed to.

Lord Williamson of Horton: moved Amendment No. 32:
	After Clause 25, insert the following new Clause—
	"Independent mental health advocacy: young persons
	After section 125 of the 1983 Act insert—
	"125C Independent mental health advocacy: young persons
	(1) The appropriate authority must arrange, to such extent as it considers necessary to meet all reasonable requirements, for help from persons to be known as independent mental health advocates, to be available for patients aged 18 years or under.
	(2) The help available under the arrangements must include—
	(a) help in obtaining information about and understanding— (i) what medical treatment is being provided to the patient; (ii) why it is being provided; (iii) under what authority it is being provided; (iv) the requirements of this Act which apply in connection with the patient's treatment; and (v) the rights which can be exercised by or in respect of him under this Act, and (b) help (by way of representation or otherwise) in exercising those rights.""

Lord Williamson of Horton: My Lords, this amendment was tabled in Committee by the noble Baroness, Lady Howells of St Davids, whose name is again attached to it, and spoken to by the noble Baroness, Lady Massey, who has now moved on to even greater things.
	I draw the Minister's attention to the fact that this is what I described on the last occasion as the mini-amendment; that is, it deals with advocacy for children and young people. It does not deal with the other question of advocacy. I did not retable that amendment, although the noble Lord, Lord Patel of Bradford, has done so, and it is not grouped with this amendment. I will deal only with advocacy for children.
	We have convincing evidence that children and young adults who are admitted to in-patient units do not always have information and are subject to confusion and fear. That is shown, for example, by the report from the office of the Children's Commissioner, which was specific on this point. I want briefly to refer to two elements. The Children's Commissioner made it clear that difficulties did arise and quoted specific examples, so we are basing our argument to a considerable degree on facts and evidence. Many of the young people were dissatisfied and unhappy about the in-patient services. In one case, no education was made available, although the patient was well within the "young" category for education. We believe that a specific requirement to make advocacy available to children and young people would be helpful in preventing them from switching off from the services and that it would provide a better basis for treatment and rehabilitation.
	The amendment is in line with the national service framework for children. In our view, the costs would not be high—perhaps about £100,000 a year for compulsory admissions and up to £1 million for all children and young people. In so far as the Minister may insist that much of this work is already being done, the new expenditure is correspondingly lower.
	I have brought this amendment forward now because it would be helpful to have the Minister's assurances about the action that the Government and the authorities are encouraging in this area. That is what we are interested in; we want to know that we are making progress in making advocacy for children and young people more widely available. I beg to move.

Baroness Howells of St Davids: My Lords, when I proposed this amendment in Committee, I related to noble Lords the story of a young Asian girl. Today, I will not give any further case studies but, as I am sure noble Lords know, there are many more.
	The amendment would give children and young people under the age of 18 the right to receive counsel from an independent advocate when they are about to be, or have been, admitted for treatment for a mental health problem, whether the admission is voluntary or under compulsion. Independent advocacy for young people provides a safeguard against the improper use of powers to detain or treat them. All children and young people should have the right to know what will happen to them if they are admitted to an in-patient unit, what to expect on admission and when they might be discharged.
	With an advocate present, a young person can be sure that someone independent of their parents, carers or clinicians will communicate their interests and ensure their right of appeal. It is very difficult for children to overturn any parental responsibility. It requires a court order, so children who do not feel that their views are being heard by parents and staff might have to seek extreme measures in order to be heard, possibly compromising their own beliefs.
	I feel sure that the Government should look very carefully at the amendment and come back to the House with something that they may feel is more appropriate. However, we feel strongly that this amendment should receive the best care and attention from the Minister.

Baroness Walmsley: My Lords, we on these Benches also support the amendment. The Minister will know that there are precedents for groups of people having a right to advocacy services. The Mental Capacity Act 2005 enshrines the right to advocacy for people lacking capacity through the independent mental capacity advocacy service, and the Adoption and Children Act 2002 gives young people looked after by the state the same right to advocacy.
	There are many reasons why a young person may need an independent person on whom they can rely to express their wishes to the appropriate authorities. I am particularly concerned about the right to education. The Children's Commissioner report contains a case study about a young woman called Amber, who was not offered any education during her seven-month stay on an adult psychiatric ward, despite being 14 at the time of her admission. A child's right to education and all the other rights are matters with which an advocate would be able to help them. An advocate could also ensure that children were properly informed, understood the treatment that was being made available to them, and many other matters. I support the noble Baroness, Lady Howells, on this.

Lord Ramsbotham: My Lords, this amendment has an application to those in custody and possibly to those who come into the criminal justice system during the period before custody.

Baroness Royall of Blaisdon: My Lords, this amendment is intended to ensure that advocacy services are available to all patients with a mental disorder aged 18 years or under. We recognise that there are certain groups of patients who will receive particular benefit from advocacy services and we have noted the views of the Children's Commissioner. The noble Lord, Lord Patel of Bradford, and my noble friend Lady Howells of St Davids brought to our attention in our debate in Committee the experience of people from black and minority-ethnic communities treated under the Mental Health Act. In particular, they stressed that:
	"Culturally competent advocacy can improve therapeutic alliances and find culturally, socially and racially responsive resolutions to conflict where it arises".—[Official Report, 17/1/07; col. 691.]
	The noble Lords were, of course, absolutely right, in that properly trained, specialist advocacy can be of greater benefit to particular groups of patients than more generalised advocacy. The work that the Government have commissioned to develop training and standards for advocates, which is currently under way, is looking at the needs of particular groups from within the population of patients with mental disorder.
	In Committee, we said that we would consider the best way to make advocacy services available. I want to assure the House that we are making progress. I am unable to confirm how we will proceed, as we wish to continue with that work before the Government announce how they will take this issue forward. We have listened not only to the strength of feeling expressed by noble Lords in Committee but also to their comments about the need for a service that will take account of the differing needs of different groups of patients.
	The amendment would provide that all patients aged 18 years or under would have access to these services. The Act provides that a patient is any person suffering from a mental disorder or appearing to suffer from a mental disorder. That person need not be in hospital or under the supervision of a specialist doctor. There is a wide range of conditions and situations that fit into that definition. Of course, I do not wish to underestimate the significance of any person who is living with a mental health problem. However, I wonder whether this would provide for a service that would effectively target resources to those in need.
	I am aware that many younger child patients who are in hospital for their mental disorder are not subject to the Mental Health Act where their parents provide consent for their treatment, as my noble friend Lady Howells outlined. In considering the best way to provide for advocacy services, I well understand that it is important that this group must not be forgotten.
	As we said in Committee, we are considering the best way in which advocacy services can be made available, taking into account the differing needs of different groups of patients. We wish to see tailored advocacy services, which will bring the maximum benefit to all groups of patients, including children and young persons. We have not, however, been able to get provisions ready in time for Report stage.
	The Government will continue to develop their proposals on how patients with mental disorder who are subject to the Mental Health Act can access appropriate advocacy services and we will bring them back when the Bill is considered in the other place. Indeed, in considering this subject we would be very happy to discuss our proposals with noble Lords who are interested in doing so. We very much hope that they will help us on this. As such, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Williamson of Horton: My Lords, I thank the Minister for that encouraging reply. I said at the beginning that this was a mini-amendment, and we always hope that the Government will make a mini-effort to accept it. We recognise, however, that the Government have gone quite a long way in following up their proposal at an earlier stage to consider the best ways to make advocacy services available. We note that their provisions are not yet ready for Report and that the Government expect to come forward with something to clarify their position when the Bill is in the other place. That is certainly encouraging for us.
	This has been a short debate, but I am sure that the Minister feels that there is a strong feeling that this would be valuable and that we could make progress and improve on it. We shall be following the debates in the other place with great care and we hope that something of value will come forward. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 33 had been withdrawn from the Marshalled List.]

Baroness Neuberger: moved Amendment No. 33A:
	After Clause 25 , insert the following new Clause—
	"Nominated person
	(1) Section 26 of the 1983 Act (definitions of "relative" and "nearest relative") is amended as follows.
	(2) In the cross-heading preceding section 26 after "functions of relatives" insert ", persons acting as relatives".
	(3) Before subsection (1) insert—
	"(A1) In this Part of the Act "named person" means—
	(a) any person described in subsection (1) below; or (b) any person not described in subsection (1) below who is the patient's carer, who has been nominated by the patient in accordance with subsection (1A) below.
	(B1) In this Part of the Act "carer" has the same meaning as in section 1(1)(a) of the Carers and Disabled Children Act 2000."
	(4) After subsection (1) insert—
	"(1A) A person is a named person in accordance with this subsection if—
	(a) the nomination is signed by the nominator; (b) the nominator's signature is witnessed by a prescribed person; (c) the prescribed person certifies that, in the opinion of the prescribed person, the nominator— (i) understands that the effect of nominating a person to be the named person will give him the role of nearest relative; and (ii) has not been subjected to any undue influence in making the nomination.
	(1B) A nomination under subsection (1) above may be revoked by the nominator in accordance with subsection (3) below.
	(1C) The nomination of a named person is revoked in accordance with this subsection if—
	(a) the revocation is signed by the nominator; (b) the nominator's signature is witnessed by a prescribed person; and (c) the prescribed person certifies that, in the opinion of the prescribed person, the nominator— (i) understands the effect of revoking the appointment of a person as named person; and (ii) has not been subjected to any undue influence in making the revocation.
	(1D) The nomination of a named person shall be effective notwithstanding the nominator's becoming, after making the nomination, incapable.
	(1E) A person nominated under subsection (1) above may decline to be the nominator's named person by giving notice to that effect to—
	(a) the nominator; and (b) the local authority for the area in which the nominator resides."
	(5) For subsection (3) substitute—
	"(3) In this Part of this Act, subject to the provisions of this section and to the following provisions of this Part of this Act, the "nearest relative" means, in descending order—
	(a) the named person; (b) the person first described in subsection (1) above who is for the time being surviving, relatives of the whole blood being preferred to relatives of the same description of the halfblood and the elder or eldest of two or more relatives described in any paragraph of that subsection being preferred to the other or others of those relatives, regardless of sex."
	(6) In section 26(4) after "his nearest relative" insert "under subsection 3(b) above".
	(7) In section 26(5) for "(3)" substitute "(3)(b)"."

Baroness Neuberger: My Lords, the new amendment takes a much narrower approach than we took in Committee because we have listened so closely to the Government's arguments. The Mental Health Alliance has come up with this amendment, providing the patient with a more restricted power to choose their nearest relative. The current list of eligible relatives who can take on the role of nearest relative will be retained. The patient would have the power to nominate their nearest relative, but only somebody from the current list plus their primary carer. The patient would have to fill out a legal form and a prescribed person would have to certify that the patient had the capacity to make this decision. It gives a restricted amount of choice to the patient, but gives some nevertheless.
	The Bill must be amended to allow a patient to nominate their representative to some extent. First, the nominated person is more likely to be someone in whom the patient has trust and confidence. Secondly, it would provide greater legal clarity on who the patient's legal representative is, and avoid the need for some of the intrusive questioning which certainly goes on during the sectioning process. Thirdly, it would avoid the unnecessary legal costs of requiring a patient to go to court to displace a nearest relative they disagreed with.
	The Joint Committee on Human Rights also recently reaffirmed the implications of R(E) v Bristol City Council 2005, where the court held that the provision should be interpreted in accordance with the patient's Article 8 ECHR rights, taking her wishes and/or health and well-being into account. The JCHR said that to ensure compatibility with Article 8, the approved social worker's duty to consult the nearest relative about compulsory admission does not apply if the patient objects to that person being consulted. We also know that service users welcomed the 2004 Bill's provision for a nominated person and are clear about the importance of the role for them.
	I could say a great deal more on the matter, but I hope that I have given your Lordships' House a sufficient explanation of why we regard this as so important. I hope that I have also shown that we have listened closely to the Government's own concerns about this. I beg to move.

Lord Patel of Bradford: My Lords, I agree with the points raised by the noble Baroness, Lady Neuberger, and shall add a brief comment. As your Lordships are aware, the Joint Committee on Human Rights has warned that the Government's proposals do not give adequate respect for the patient's right to private and family life, saying that,
	"the Government is laying themselves open to future embarrassing litigation".
	I shall be surprised if the Minister does not, finally, grasp at the solution being offered through this amendment. The law as it is, and as it will remain under the Government's proposals, leaves too much that is uncertain and too much to the discretion of individual social workers for an adequate protection of Article 8 rights.
	For example, even after being displaced by a county court, a nearest relative is deemed by case law to continue to retain—I quote from the 1995 ruling in Surrey County Council SSD v McMurray—a "legitimate interest" in a patient's welfare, which,
	"should always be paid proper respect by the authorities in making decisions about and arrangements for the patient's care".
	The law therefore suggests that, even after displacement, a nearest relative may continue to have some contact with professionals regarding a patient's circumstances and decisions relating to his or her care. The only way in which an approved mental health practitioner could avoid a continuing breach of Article 8 in respect of a patient whose nearest relative has been displaced as unsuitable, would be to claim that such continued contact would be not "practicable", relying on the definition of practicability given in the more recent 2005 Bristol City Council case referred to by the noble Baroness. To my mind, that places a burden on the social worker that should not in fact arise in any sensible legal structure. Furthermore, a displaced nearest relative continues to retain the ability, under Section 29(6) of the Mental Health Act, to apply to the mental health review tribunal annually on a patient's behalf.
	As such, the proper answer to the Article 8 problems highlighted in past legal challenges is not to widen the criteria for displacement, but to enable patient choice to determine who the nearest relative is in the first place.

Baroness Royall of Blaisdon: My Lords, I am grateful to the noble Baronesses, Lady Barker and Lady Neuberger, for their work on Amendment No. 33A, which is a considered attempt to address the concerns that my noble friend Lord Hunt raised on the earlier amendment in Committee. They have made significant changes. However, while it addresses the issue of patients nominating totally inappropriate strangers as their nearest relative, it still suffers from the difficulties associated with patients having nomination rights over the person who can block their admission to hospital or discharge them from compulsion.
	In Committee, noble Lords made reference to the role of the "nominated person" that we proposed in the 2004 draft Bill. As your Lordships are aware, that Bill would have abolished the nearest relative, while the role of the nominated person, which it instituted, was entirely different to that of the nearest relative. The role of the nominated person was that of a patient representative, so it was right and proper that the person was chosen by the patient. In the debate, a number of noble Lords did not accept our concern that a patient nominee would act at the behest of the patient even where that might not be in line with what they themselves saw as the best interests of that patient. The noble Baroness, Lady Barker, asked why there was any more reason to believe that a person nominated by the patient would be more likely to act against the best interests of the patient than one nominated under any other system.
	We are not concerned that a person named by the patient is more likely to act wilfully against the best interests of the patient, but that a named person is more likely to act at the behest of the patient. We feel that a person named by the patient is likely to feel an obligation to act in the very way the patient requests. While this amendment restricts whom the patient can nominate as their nearest relative, the same concerns apply. The role of the nearest relative is not one based on acting in the name of the patient, but one that provides for nearest relatives to act in the way that they consider is right. The process of nomination can introduce an unhelpful and damaging dynamic into the relationship between the patient and the person who is to exercise the rights of the nearest relative.
	SANE has told us that,
	"because of the effects of their illness, some patients put considerable pressure on their nearest relative to stop them being taken to hospital or discharging them once they are there. The spouses, parents and caring relatives manage this as well as they can".
	It goes on to say that it,
	"would be concerned if widening the scope of those who might be able to perform the functions of the nearest relative could have the effect of alienating family members caring day in and day out for relatives living with severe and enduring mental health problems—making family relationships at these difficult times even more fraught and fractured and possibly compromising the help on which the patient might need to rely in the long term".
	That is not to say that SANE opposes the principle of patient choice. However, it believes that,
	"it is also important to protect the status of the nearest relative and distinguish it from that of other people and advocates".
	We have made it clear that nearest relatives are not patient representatives, and their appointment should not be made in a way that can place further stress on family relationships at what may already be an extremely difficult time.
	Where detention is for the purposes of treatment, under Section 3 of the Act, the nearest relative is able to oppose the detention. Having decided to retain the general scheme of the current Act, rather than to replace it entirely, we do not wish to see an end to that important safeguard. Equally, we do not wish a nearest relative named by the patient to feel obliged to oppose detention because that is the wish of the patient who nominated him, and, should he fail to oppose that detention, to see the patient revoke his status as nearest relative only to choose another perhaps more compliant relative or carer who would order his discharge.
	Since we announced our changes we have had correspondence, some from a concerned nearest relative whose daughter has from time to time been detained. He reports that his daughter is often angry that he, as her nearest relative, does not use his powers to block her detention or to discharge her early. He was concerned that our amendments would mean that his daughter would be able to go to court to have him displaced as a nearest relative, because he would not act to discharge his daughter if he felt doing that was not in her best interests. We have reassured him on that point.
	Various points were made about the JCHR. In its fourth report of the 2006—07 Session it questioned whether the Government intended the word "suitable" to equate to abuse. That is not the case. The intention is that it will include, but not be so narrow as to be limited to, nearest relatives who have a history of abusing or potential to abuse the patient.
	Returning to the amendments, I believe that Amendment No. 33A would concern the father of the patient, to whom I referred, as well as many other conscientious and caring nearest relatives. We believe that the amendment may inadvertently undermine this safeguard, and has the potential to cause unwarranted problems in what are often, as your Lordships pointed out during Committee, complicated family dynamics.
	On Amendment No. 35, I recognise that the noble Baronesses, Lady Barker and Lady Neuberger, wish the nearest relative to have a say in vital decisions affecting the patient. That is understandable, and in principle we agree. However, Amendment No. 35 is not needed and could cause real practical problems. In Section 3 of the Mental Health Act 1983, there is a duty on what will be known as the AMHP to consult the nearest relative on application for admission for treatment, unless it is impracticable or would involve unreasonable delay. That enables the nearest relative to exercise his right to block the detention of the patient.
	The decision to place a patient on a CTO is quite different in nature to detention under Section 3; it is a treatment decision. The CTO is essentially an extension of compulsion and, importantly, lessens the restrictions imposed on the patient. The Act requires consultation with the nearest relative—and provides a power for the nearest relative to block detention—in decisions where the patient is facing greater restrictions to his liberty, not fewer. The requirement to consult the nearest relative when a CTO is made is not consistent with this. Paragraph 31 of Schedule 3 to the Bill amends Section 133 to ensure that the nearest relative is informed where a patient is placed on to a CTO, as must occur when a patient is discharged from detention. We therefore believe that no further requirement to consult the nearest relative is needed. Also, to impose a duty for the responsible clinician to consult is problematic without an associated power for the nearest relative to act should they disagree with the decision. What would happen if there were a disagreement between the nearest relative and the responsible clinician? This amendment gives no power for the nearest relative to act if such disagreement occurs.
	We are also concerned that it would not be right to involve a nearest relative in cases where the patient objects. To do so may give rise to a breach of the patient's rights under Article 8 of the European Convention on Human Rights. Even if the nearest relative were a person named by the patient—as Amendment No. 33A proposes—it would not always be the case that the patient would want the nearest relative consulted when a community treatment order is being considered. This amendment does not provide for the patient to prevent this consultation.
	There is already a duty to inform the nearest relative when a CTO is made. We think the best way to address the question of consultation is via the code of practice, where it is possible to set out the circumstances where consultation should and should not take place. The draft illustrative code for England includes material to that effect; we can, of course, consider what else might be needed in due course and will listen to the views expressed by noble Lords. We consider that there is an important place for the proper representation of patients. There is a role for a person, or persons, of the patient's choice to be able to put forward their views and advocate on the patient's behalf, as I described in our last debate.
	We have provided guidance to practitioners in the draft illustrative code of practice on when carers and nearest relatives should be consulted, and the important role that they can play in a patient's care and treatment. There will also be further opportunities for stakeholders' views to be incorporated before the code is laid before Parliament.
	We do not believe that the amendments in question are the appropriate way of achieving effective patient representation, but that we already have the correct balance in the existing provisions for carers to be prioritised when determining the nearest relative. I therefore ask that the noble Baroness considers withdrawing her amendment.

Baroness Neuberger: My Lords, I thank the Minister for her response. She will hardly be surprised to hear that I am slightly disappointed. We accept part of what she said, particularly her fair point on Amendment No. 35 about the nearest relative not being able to act on the CTO, which is something that we will take back and look at. However, we are not convinced by the rest of the argument. This is a point that goes back to Committee. We are not convinced of the real difference between mental illness and physical illness or that one does not let a person make even limited choices about who can act as nearest relative on his behalf. We listened to what the Government had to say and limited the list concerned. We believe that there is enough differentiation in the system between people with physical and mental illnesses. We think that this is a difference too far, and that it is unnecessarily restrictive. We will take this away and look at it closely, and we will probably come back at Third Reading. Having made clear that we are not as yet content, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 26 [Community treatment orders, etc]:

Earl Howe: moved Amendment No. 33B:
	Clause 26, page 15, line 31, at end insert—
	"(b) if the responsible clinician is not a medical practitioner, the responsible clinician has arranged for the patient to be examined by— (i) the registered medical practitioner who has been professionally concerned with the medical treatment of the patient; or (ii) if no such practitioner is available, a registered medical practitioner who is an approved clinician; and the medical practitioner has made a written recommendation in the prescribed form including a statement that in the opinion of the practitioner the relevant criteria set out in subsection (5) below are met; and"

Earl Howe: My Lords, in speaking to Amendment No. 33B I shall raise an issue that has caused considerable and deep divisions between the Government and the mental health community, namely, the conditions which should determine the threshold of entry on to a community treatment order. I shall speak also to Amendments Nos. 36A, 47 and 59.
	The Minister should note that, in moving this amendment, I do not oppose CTOs outright, even though there is a strong argument for doing exactly that. If there was one speech in Committee that summed up the intellectual case against CTOs, it was that of the noble Baroness, Lady Meacher. The supposed effectiveness of CTOs as proclaimed by the Government is not backed up by any convincing evidence. Even more serious than that, there is a real risk that the coercive element in CTOs will undermine the whole basis on which community mental health services are provided through assertive outreach teams and the rest. Those services depend for their success on positive engagement and trust. It is very difficult to have benevolent treatment and coercion operating side by side; indeed, some would say that it is impossible. At the very least, the combination sends a very mixed message to the patient.
	The Minister seems to take it as self-evident that being on a CTO is better for a person than being detained as an in-patient because it is less restrictive, but he overlooks an important fact: although a patient may have been ill enough to be placed in hospital at the outset of the process, by the time the issue of discharge arises, that is no longer the case. At that stage, the issue is whether a person who is well enough to enter the community should remain under the enforceable and coercive power of an order. It is by no means self-evident that, for the generality of patients, continuing coercion represents an ethical or therapeutically effective way forward.
	We have to be clear that these orders are likely to be exceedingly restrictive in some cases. Clinicians will need to think carefully before imposing them because there is no doubt that any CTO will interfere with a person's family and private life, sometimes severely. Yet the Bill tends to encourage the opposite approach—the noble Baroness, Lady Meacher, made this point—because it is framed in such a way as to put pressure on professionals to impose CTOs, even when they may not really wish to, purely to cover their own backs. I do not think we should put professionals in that position, which is one of the main reasons why I feel we owe it to them and to patients to define as closely as we can the cohort of people whom we are prepared to accept could be made subject to an order.
	The amendments take as their starting point a premise that I am not sure the Minister has ever really accepted, which is that, leaving aside people who fall within Part 3, patients who retain full decision-making powers in relation to their own treatment should normally be allowed to take control over their own lives, just as anyone with any other health condition should be able to. Only where decision-making powers are impaired is there an ethical case for compulsion. Furthermore, I believe that those who are not a serious risk to others can be treated satisfactorily by the existing provisions of the Mental Health Act relating to leave of absence and supervised discharge.
	Although supervised discharge is little used, it has been proven to be effective in most of the cases in which it has been used over a wide range of clinical and social problems. It is suited to patients who are in hospital under compulsion and whose condition has stabilised to the extent that they do not require close hospital supervision but who are not well enough to be fully discharged from medical care. It is a supportive regime that strengthens rather than weakens the therapeutic relationship. One of the interesting features of the research into the use of Section 25 supervised discharge is that it improves compliance with medication. The absence of a coercive element does not seem to matter. Apart from the fact that that finding calls into question the whole rationale for CTOs, it provides good grounds for leaving out Clause 30 and retaining the option of supervised discharge. If one accepts that—and the vast majority of mental health professionals do—it is clear that we need to exclude from the ambit of CTOs any patient who represents no serious risk to others and can take balanced decisions about his or her own treatment.
	So what kind of patient is a CTO potentially suited to? The Government's argument for the use of CTOs has focused on cases where a person poses a serious risk to others. The thought is that this group of people will benefit particularly from the blend of supervision, care and control and the possibility of recall that a coercive outpatient system provides. As far as hard evidence goes, the jury is still out on whether that assumption is valid in the sense of CTOs being able to prevent homicides. We simply do not know. However, in an effort to be fair to the Government, I am willing to take their belief at face value for the purposes of the Bill. Accordingly, the amendment states that those who pose a serious risk of harm to others should be liable to be placed under a CTO; furthermore, they should be people whose ability to make decisions about receiving medical treatment is significantly impaired. In a nutshell, we are dealing with patients who do not, at the relevant time, accept that they are a risk to others, despite being advised that they are, because of the nature of their mental disorder. In the accepted jargon, they lack insight.
	However, we need to go further than that. If we allow CTOs to be imposed on every patient who falls into that category, we run a big risk of leaving very wide scope for these powers to be used on people who will derive no benefit from them. There is simply no evidence that, for the majority of patients, coercion in the community works better than an informal regime of community supervision and care. If coercion is used, it must be justifiable.
	For that reason, I have also argued under the amendments that we should seek to restrict the application of CTOs to a relatively narrow group, commonly referred to as revolving-door patients. They are defined by a three-pronged criterion. The first prong is that, on at least one occasion for the current admission under Section 3, the person has refused to accept medical treatment for a mental disorder. The second is that, when appropriate medical treatment has been refused in the past, there has been a significant relapse in his condition justifying compulsory admission to hospital. The third is that, when the person was admitted compulsorily, medical treatment resulted in an improvement in his condition or prevented its deterioration.
	The conditions therefore link the previous refusal of treatment which results in admission with the proven benefit to the patient from the treatment proposed. They then require a relapse to have occurred because of the failure to continue with the medication. Furthermore, the doctor must be clear that the patient is unlikely to continue with the medication without an order. In that way, the legislation will make clear to professionals that the key criteria are: previous relapse, proven therapeutic benefit from treatment and the need—the need—for compulsion.
	The amendment also stipulates that any decision to place a patient on a CTO must involve a medical practitioner. That is because only a medical practitioner can take what are essentially medical decisions—what is the person's mental disorder, how severe it is, how likely it is that the patient will comply with medication, the risk of relapse and so on.
	I do not expect the Minister to change his position on the issue. He has previously resisted any narrowing-down of the criteria for CTOs. We are therefore likely to remain as far apart at the end of this debate as we were at the beginning. That is not a happy state of affairs, but it does not detract from my belief that the amendments represent the right way to proceed, for all the reasons that I have given. I therefore beg to move.

Lord Carlile of Berriew: My Lords, we support the amendments moved by the noble Earl for the reasons that he has given. I simply want to remind the House of Chapter 5 of the report of the joint scrutiny committee. We heard a great deal of evidence about community treatment orders. As paragraph 205 of Volume 1 of our report records, on balance, we came down in favour of limited compulsion in the community. We heard a great deal of evidence from both home and abroad, and we invite the Government to take the view that the amendments provide an appropriate restriction on a power which, we on the committee fear, might become overused as a substitute for residential compulsory treatment.

Lord Alderdice: My Lords, I want briefly to appeal to the Minister and the House to recognise that these are complex disorders and situations. It is a fantasy to believe that the first time that a psychiatrist meets such a patient they will know precisely what is the diagnosis; that, even if they do, they will know what is the best treatment; and, even more contentiously, that they will be clear about the prognosis. To believe otherwise is to be in cloud-cuckoo-land. These are complex, difficult disorders. Until one sees how they work out in practice—whether patients relapse; whether particular treatments work; whether compulsion, inpatient or outpatient treatment works best—other than from the experience of working with the patient, one cannot know. To embark on compulsion from an early stage is, at best, unwise and, at worst, professionally irresponsible.

The Lord Bishop of Worcester: My Lords, I just add a brief word about the contrary pull of compulsion and therapy. Obviously, I am not a medical practitioner, but I often have to deal with people who need to, if I may put it this way, do some work on themselves if they are to flourish and make a continued good contribution.
	I have never known a case where compulsion assisted in that process. It is always to be undertaken with the greatest reluctance because of its counter-therapeutic effect. The patient—the person—is deflected from an engagement with the forces within that have to be engaged with into a preoccupation with the forces of the authority that has required the patient to have treatment. As I say, that is counter-therapeutic; therefore, the narrowing of the criteria—imposing statutory reluctance, as it were—seems to be of the first importance.

Baroness Murphy: My Lords, I am very disappointed overall. Although I have moved a long way personally in my response to the Government's proposals—I no longer oppose them fully—we do not even have agreement to the constraints that would restrict community treatment orders to the very group that the Government have said they want to be subject to the orders. I remain very concerned that a young person who has a first breakdown—20 per cent will never have a relapse—may be placed on an order, come into hospital and remain on an order at intermittent review, without ever having had the opportunity to demonstrate their non-compliance with the medication.
	At the very minimum, we should have some restriction that enables that person to demonstrate that they can build a relationship and become engaged in treatment. As the legislation stands, that may not be possible. What signal does that send to young people in the community, the very ones whom we want to encourage into treatment at the first symptoms of their illness? I strongly support the amendments to constrain the orders and still believe that we would catch under the order the very people whom we would like to engage in treatment for longer.

Lord Hunt of Kings Heath: My Lords, this has been a short, although, if I may say so, sober debate on supervised community treatment, which is one of the pillars of the legislation. We had a good debate on the principles of supervised community treatment in Committee. Although noble Lords opposite and those on the Cross Benches have concerns about supervised community treatment, they have also made clear—the noble Earl, Lord Howe, certainly, did—that supervised community treatment is not opposed outright.
	However, there is clearly a big gap between the Government and other noble Lords on the benefits that we believe supervised community treatment will bring and on other views. For instance, the noble Earl, Lord Howe, talked about the coercive element of supervised community treatment undermining confidence and trust and referred to the positive nature of assertive outreach work. He suggested that that might be undermined by the use of supervised community treatment. Clearly, the Government disagree. We think that supervised community treatment is complementary to the progressive work being done in the development of mental health services. I reiterate the comment that I made in Committee, which the noble Lord read back, that if supervised community treatment can be provided as an alternative to compulsory treatment in hospital, surely that must be to the advantage of many patients.
	Before I give my technical response to the amendments, I should point out that supervised community treatment, in contrast with that in other countries, can apply only to those patients who would already have been detained under the Mental Health Act. The strong criteria in Clause 26, on page 15, against which a person must be tested for a community treatment order, very much mirror the criteria that would apply to a person having to be detained in hospital in the first place. I know that we are going to debate some of the safeguards in the next two groups of amendments, but I must say at this point that the amendment ignores what the Government believe are very strong safeguards in the Bill for people placed under supervised community treatment. That is my answer to the noble Lord, Lord Alderdice. Of course I accept his point about the complexity of the issues. As a lay person, I do not begin to underestimate the difficult decisions that psychiatrists, responsible clinicians or approved mental health practitioners will have to take, not only in relation to provisions in the Bill but more generally in their work. The fact that a person to whom supervised community treatment applies will have already been detained under the Mental Health Act is a response to the fear that thousands of people will suddenly be compulsorily detained in the community. Noble Lords will know that we estimated that, over five years, it would apply to a few thousand people. We do not believe that it will be overused or that it will be a substitute for hospital treatment. We believe that supervised community treatment sets a very positive example for a number of people who have been detained.
	There are a number of elements to the amendments that the noble Earl has tabled, some of which we have debated in earlier stages of the Bill. Amendment No. 33B relates to the role of a medical practitioner in the decision to place a patient under a community treatment order. It is very important that provision is made in the Bill for a patient's responsible clinician and that the ability to be a responsible clinician has been widened from being simply a medical practitioner. That is a very important element of the proposals that we put before your Lordships. It is worth making the point that the responsible clinician alone cannot make the CTO but must have the agreement of an approved mental health practitioner. Responsible clinicians should consult the multi-disciplinary team, who will provide the necessary input.
	I reiterate a point made by my noble friend on Report: there is no question of the responsible clinician being able to dictate to a doctor the medication for a particular individual. That cannot arise. As my noble friend said, the decision must rest with the individual doctor prescribing that medication. Nothing in the Bill changes that. There are real benefits in having responsible clinicians who may not be medics but who will be senior professionals in their field and will have demonstrated the highest skill and expertise in mental health and undergone specialist training. The skills, experience and expertise will be enshrined in—

Baroness Meacher: My Lords, does the Minister accept that a consultant psychiatrist has had 13 years of training to create the tools for him to make these very difficult judgments? When he mentions other professionals and training, I think that we are probably assuming that he means perhaps days or weeks of training. Does he really think that, in the case of someone suffering from a psychotic illness, anyone other than a psychiatrist, who has had the many, many years of training and experience that I mentioned, can develop the expertise to make these judgments to impose on the individual, possibly for very long periods, a requirement to take medications that that clinician will not understand and the side effects of which that clinician will not understand? Does it not seem incongruous to the Minister to have people taking decisions that they simply do not have the competence to take?

Lord Hunt of Kings Heath: My Lords, I simply do not recognise the possibility that the noble Baroness describes. She referred, for instance, to a few weeks' training. Let me disabuse her of that notion immediately. We are talking about people who have been senior professionals in their particular field for a considerable number of years; I do not want to specify the exact number. That is the point of directions, which will have the force of law. These issues are being, and will be, agreed with stakeholders, including the Royal College of Psychiatrists.

Baroness Meacher: My Lords, of course other professionals may have had several years of training in their professions to develop the tools to enable them to undertake their professional duties. However, those professionals will be experts on behavioural therapy and all sorts of other things, but they will not be experts on the treatments that are required by psychotic patients. That is the concern. I think that many of us in this House will be very happy for, say, a psychologist to be responsible for making a community treatment order for someone with a personality disorder once the assessment has been made of that person to ensure that that disorder was not in some way complicated by a psychotic disorder. My concern is that there is no indication in the Bill that people with a psychotic disorder should be put under a community treatment order only by someone who understands the full implications of that decision and the treatment to which that person will be subjected.

Lord Hunt of Kings Heath: My Lords, the problem with the route that the noble Baroness is taking is that if a responsible clinician, subject to approval by the approved mental health practitioner, cannot take certain decisions in relation to a community treatment order, you undermine the role of that clinician. I do not want to be pushed into a corner and give a definite statement in response to an instance that she has given, but my general understanding is that, in the kind of situations that she has described, a consultant psychiatrist is the most likely responsible clinician. My problem with the amendment is that it is saying in essence that the responsible clinician cannot in the end accept responsibility. I have received a number of comments from bodies such as the British Psychological Society and the Royal College of Nursing, as well as from a consultant psychiatrist, expressing concern that, however much the amendment as proposed is well intentioned, its ultimate impact will be to undermine the whole concept of the responsible clinician who in the end has to accept responsibility.

Lord Alderdice: My Lords, I want to draw two issues to the Minister's attention. First, it is not possible for the responsible clinician to take responsibility for a medication unless they are qualified to prescribe it. Secondly, the person who is responsible for prescribing a medication may be in the position of having to continue to prescribe it within a context that they do not agree with, because it is required only that there be a consultation. We all know from years of working with Governments how much consultation can sometimes mean in terms of real decision-making. Therefore, the medical practitioner will be in the position either of having to continue prescribing a medication within a context that they do not agree with or of stopping it. The medication could not then be prescribed by the responsible clinician if he is not a medical practitioner because he would not be legally empowered to do so.

Lord Hunt of Kings Heath: My Lords, I made it clear early on that, when a doctor prescribes a medication, that is clearly the result of the medical judgment of that doctor. I reiterate that. On coercion, I should have thought that any doctor who was so coerced would be acting against all the principles that the medical profession holds dear. I just do not see that happening. The point that I sought to make is that, if we are establishing responsible clinicians in this Bill, we accept that, while in some cases they may not be medical doctors, in the main they probably will be. Given that, by agreeing to the amendment proposed by the noble Earl, Lord Howe, where the approval of the medical practitioner is needed, we would undermine the role of the responsible clinician. It may be that because of their concerns in this area, noble Lords wish to do that. All that I am seeking to do is again to draw a distinction between the role of the responsible clinician and that of the medical practitioner in the decision—

Lord Soley: My Lords, will my noble friend give way, because I am becoming increasingly confused about this? It has always been my understanding, and I do not see anything in the Bill to change it, that if a person is to be treated with a drug therapy to deal with a psychosis, for example, it has to be prescribed by a doctor. It cannot be prescribed otherwise—end of argument and full stop. On the other hand, in the case of a personality disorder that does not usually require drug treatment, the patient might require treatments using other skills and abilities that also often require lengthy periods of training. In those circumstances, a person with medical qualifications is not necessarily the right individual to make the approach. Therefore, there always has to be a team approach, because ultimately both groups will be involved. However, it is and always has been absolutely clear—and would be even if this Bill had not been brought forward—that a person cannot prescribe a drug therapy unless they are medically qualified.

Lord Hunt of Kings Heath: My Lords, that is a helpful intervention. My noble friend is right: nothing in the Bill requires a professional to act beyond their professional competence. A professional will not be able to make decisions about medication unless they are qualified to do so.
	I shall carry on in order to refer to two other aspects of the amendment. The noble Earl, Lord Howe, referred to concerns that, in effect, clinicians will be forced to err on the side of caution and make a patient subject to a CTO on discharge from hospital simply to cover their backs. With respect, if a responsible clinician is considering supervised community treatment, they must make the decision with reference to the criteria in the Bill and the guidance that we will provide on the application of those criteria. We have debated before the issue of trust in professionals when exercising their judgment to do so fairly, so surely it is right to expect responsible clinicians to exercise their judgment on the application of the criteria. We need to be very careful before we accept this caricature of how a supervised community treatment order might work in practice.
	I understand the points made by the noble Earl about aftercare—ACUS, as it is known—and his argument that this ought to be retained as a way in which supervised aftercare could be provided. However, the problems are twofold. First, it is clear that it has not been used because neither professionals nor patients have much confidence in it. We have evidence that it has not worked well. A study commissioned by my department in 2001 found that take-up was low, largely because it was seen as bureaucratic and lacking in the necessary powers. For instance, there are no powers to recall a patient to hospital for treatment. I also say to the noble Earl—and here I go back to our previous debate where clarity has been called for, particularly for the professionals who are going to have to operate the legislation—that to have two different systems for the management of mental disorder in the community would make it more difficult and confusing to clinicians in deciding which system is more appropriate for their patients.
	I fully accept that supervised community treatment is a compulsory regime and should not be taken lightly. I believe that the stringent criteria set out in the Bill and the safeguards built into supervised community treatment, along with the judgment of professionals, albeit guided by the code of practice, will ensure that the clear advantages offered by supervised community treatment will bring very worthwhile benefits to many patients now being detained in our hospitals. I therefore urge the noble Earl to reconsider his view.

Earl Howe: My Lords, I am most grateful to all noble Lords who have taken part in this debate and to the Minister for his reply. He is of the view that we have here a set of provisions that provide an appropriate gateway into compulsory community treatment. My belief is that the gateway is too wide, and that is the reason for these amendments. Underlying that division of view between us is a philosophical divide. If I had to be brutal about the Government's position on this issue, as indeed on other issues in the Bill, I would say that it rests on a profoundly paternalistic attitude to mental health patients. It is an attitude that accepts only grudgingly that the autonomy and decision-making ability of those with a mental illness matter at all and which would actually much prefer these people to jolly well accept what is good for them whether they like it or not.

Lord Hunt of Kings Heath: My Lords, I apologise for intervening because I know that the House wants to reach a decision, but I just want to say that that is not the Government's view. Ours is not a paternalistic approach. The noble Earl, Lord Howe, ignores the fact that the patients to whom these provisions will apply are those who have already been detained under the provisions of the Mental Health Act. Supervised community treatment, far from being paternalistic, will offer a number of patients a greatly enhanced process over simply continuing to be detained in hospital.

Earl Howe: My Lords, I understand the Minister's view on this issue. The fact is that we do not know how many patients will benefit from being on a CTO because the evidence, as I said, is simply not there, despite all that the Minister said. The evidence that we have is inconclusive, in that all the studies in this area have been unable to tell whether any beneficial effects of CTOs are due to the compulsory nature of the order or to the increased community services that are made available alongside the order. If enhanced community services support better outcomes on a voluntary basis, as we know they do, the addition of a compulsory order is likely to make no positive difference to those outcomes; indeed, it may detract from them because of the element of coercion.
	It is not often that I pray in aid the noble Lord, Lord Warner, but it was he who emphasised in Committee that it is the so-called "revolving door" patients whom these provisions are designed to help. That is why the amendment proposes that only those patients who fall into the "revolving door" category are covered by the SCT provisions. The noble Baroness, Lady Murphy, told us succinctly the dangers of having a wider gateway. In response to the exchanges about the medical practitioner being involved, these amendments propose that, before a person is put on to a CTO, two professionals have to agree that that is clinically appropriate. That is all it amounts to.
	On an issue of this kind, it is right for me to test the opinion of the House, and I beg leave to do so.

On Question, Whether the said amendment (No. 33B) shall be agreed to?
	Their Lordships divided: Contents, 173; Not-Contents, 140.

Resolved in the affirmative, and amendment agreed to accordingly.
	[Amendments Nos. 34 and 35 not moved.]
	[Amendment No. 36 had been withdrawn from the Marshalled List.]

Earl Howe: moved Amendment No. 36A:
	Clause 26 , page 15, line 39, leave out from beginning to end of line 7 on page 16 and insert—
	"(b) except where a patient is detained under Part 3 of this Act (a patient concerned in criminal proceedings or under sentence), the patient's ability to make decisions about the provision of medical treatment is significantly impaired because of his mental disorder; (c) it is necessary for the protection of others from serious harm that he should receive treatment; (d) subject to his being liable to be recalled to hospital for medical treatment such treatment can be provided without his continuing to be detained in a hospital and it cannot be provided unless he is liable to be recalled to hospital; (e) the patient has, on at least one occasion previous to the present admission under section 3, refused to accept medical treatment for a mental disorder and— (i) when appropriate medical treatment has been refused there has been a significant relapse in his mental or physical condition justifying compulsory admission to hospital; and (ii) medical treatment following compulsory admission alleviated or prevented a deterioration in his condition; and (f) appropriate medical treatment is available for him."
	On Question, amendment agreed to.
	[Amendments Nos. 37 and 38 not moved.]

Earl Howe: moved Amendment No. 39:
	Clause 26 , page 16, leave out line 34

Earl Howe: My Lords, we come now to some further, very major, concerns about supervised community treatment. I shall speak also to Amendments Nos. 41ZA and 50A.
	Clause 26 will allow the responsible clinician to require a patient on a CTO to abstain from a particular conduct. I suggest that this provision is misplaced, possibly even dangerous. My concern, which has been very widely expressed, is that this particular condition of a CTO could make supervised community treatment into some form of psychiatric ASBO. I can do no better here than quote the Mental Health Act Commission, which has argued:
	"Our serious concern would be that perhaps over time those clauses would start to be used in a way that would provide controlling arrangements, perhaps for young black people who are thought to be drug addicts and they are placed on what would be the equivalent of an Anti-Social Behaviour Order but run under the Mental Health Act".
	Part of the problem is that the Bill does not go into detail about what sort of conditions might be thought reasonable. One condition might be that the person must not go down to the pub; another might be that he must not be outside his house between certain hours; another might even be that he is not to leave his house at all and that he is to be kept there effectively under house arrest.
	The potential for a very serious interference with a patient's private life is considerable. There is no guidance in the Bill to say to the responsible clinician, "You must exercise your powers in line with public law principles and the patient's convention rights under the Human Rights Act and the ECHR". Of course the code of practice will be there, and I am sure that the Minister will point that fact out, but it will have a limited legal effect and cannot be thought sufficient to provide protection to patients in this regard.
	There are other concerns as well. Carers' organisations are worried that they would be left to police these conditions. Even the National Forum for Assertive Outreach, which is a strong supporter of CTOs, has agreed that it would be morally wrong to place conditions on a CTO such as preventing a patient visiting a pub or begging.
	This is, above all, a moral issue, but it is also about having clarity in the law and the dangers of a lack of clarity.
	Let me turn to the other two amendments. These would allow a patient on a CTO to appeal to the mental health review tribunal against any of the conditions imposed. They would also allow a tribunal to recommend that any of the conditions could be varied or suspended when an application has been made to the tribunal for the patient to be discharged. In both cases, the tribunal would have the power to recommend that the responsible clinician should make changes to the conditions. If this is not done, the tribunal would have the power to order a further hearing.
	We are dealing with a human rights issue of considerable significance. The Bill does not permit the tribunal to review the conditions imposed on a CTO—it can only discharge someone from a CTO altogether. In my submission, that is simply not acceptable. We can easily imagine a situation in which very restrictive conditions have been applied to a CTO—restrictions that are so great as to amount to a breach of the patient's Article 5 rights. Why should the tribunal not be able to review them?
	There could be a slightly different situation in which a patient does not dispute the need for a CTO but objects very much to a particular condition which might amount to a breach of a convention right. It could be argued that there is a breach of Article 13 in that there is no effective remedy available.
	The remedy that the Minister will no doubt refer to is the independence of the approved mental health practitioner. I have considerable doubts about the degree to which the AMHP will be able to exercise true independence as a member of a clinical team which includes the responsible clinician. Are we really saying that proper training will do the trick? The Government clearly did not think that that would be enough when they published the 2004 draft Bill, which made provision for the tribunal to approve conditions and treatment plans. Again, the Minister may say that the code will ensure that the conditions are kept to the minimum necessary. However, the code will not prevent the imposition of a curfew or similar restrictions which, cumulatively, might amount to a deprivation of liberty.
	There is a real lack of external safeguard, which contrasts with other areas where Article 8 of the convention is engaged, such as the Regulation of Investigatory Powers Act 2000 and the Prevention of Terrorism Act 2005. I am sure that the Minister will not disagree that restrictions on conduct should be proportionate and that conditions should not be imposed which collectively amount to a deprivation of liberty. The question is whether we can rest content if these requirements do not appear on the face of the statute. I do not believe that we can. Therefore, I beg to move.

Lord Carlile of Berriew: My Lords, I support these amendments for all the reasons which have been so cogently expanded by the noble Earl. I just want to emphasise one part of what he said; namely, the legal issue which it seems to me arises if there is not a remedy before the mental health review tribunal. The analogy with the Prevention of Terrorism Act 2005 is good. It was recognised when control orders were introduced that it was essential that a due process be provided; that is, a judicial procedure which would be regarded as a remedy under Article 13 of the convention. That due process has been found to be useful. There have been cases—for example, R v E, in which judgment was received in the past few days—in which the judge reviewing the control order conditions declared that some of them were unlawful and therefore invalid, and a new control order had to be issued.
	If the Government do not include the power to go to the mental health review tribunal for a review of community treatment order conditions, what will follow is inevitable. Someone, or a group of people, whose conditions are fairly stringent will apply to the High Court for judicial review on the grounds that they are disproportionate. That will result in an expensive and time-consuming set of litigation, which will eventually lead us to the conclusion that the Act is insufficient in the remedy it provides. It is far better to deal with that now than after a war of attrition through the courts.

Lord Hunt of Kings Heath: My Lords, obviously these amendments reflect concerns raised in Committee and at Second Reading. The short-term phrase "psychiatric ASBOs" has been used, which we refute. I have concerns about the impact that the amendments would have and want to make it clear that the conditions attached to a community treatment order set a framework for the patient's life in the community. One is not being defensive about this—that is what they are there to do. They make clear what the patient needs to do or not in order to manage his or her mental disorder and to remain stable.
	As noble Lords have suggested, they will be greatly dependent on the professional views of the responsible clinician and the improved mental health practitioner because the conditions must relate to the patient's mental disorder and its management. They must also be acceptable—even if not agreeable—to the patient at the outset. Inevitably, the establishment of the community treatment order will take place after discussion between the patient concerned and the clinician. It is hardly likely to work if the patient is not in a position to take advantage of the community treatment order. If the patient does not agree at least to try to keep to the conditions, what are the chances that supervised community treatment would succeed in the first place?
	As set out, the conditions say that they may be specified. They are merely examples, which will not be appropriate for every case. They are not enforceable, with the exception of,
	"a condition that the patient make himself available for examination".
	That is not their purpose. We do not propose to recall a patient to hospital merely because he has failed to comply with a condition. Of course, a failure to comply is a signal that something may be going wrong and, depending on the patient's medical condition, recall to hospital may be necessary, but that will depend on the patient's individual circumstances and is not automatic.
	I stress that, just as the conditions in general are not mandatory, the fifth condition is likely to be appropriate for only a minority of patients. It is there for consideration where it is directly relevant to the patient's mental disorder and will contribute to the success of the patient's community treatment. If abstaining from a particular kind of conduct would help a patient to remain stable and if making it a condition of a community treatment order makes that abstention more achievable, the patient and others will benefit. It would be unacceptable to impose such a condition for any other reason, which will be made clear in the code of practice. Two professionals will be involved when a community treatment order is made; namely, the responsible clinician and the approved mental health practitioner, who must both agree to all the conditions before they can be set. That should surely ensure that there will not be arbitrary conditions imposed which cannot be justified.
	I was asked about examples: in Committee, I quoted an example in which a patient was thought to be illegally taking drugs or consuming alcohol to adverse limits. That could impact on the overall treatment and condition of the patient and, in certain circumstances, it may be appropriate to lay such a condition. If noble Lords accept that, I know that they would then wish to bring the tribunal into play. We do not agree that that is the way forward. The tribunal of course is an independent judicial body, which considers the justification for a person's continuing detention, guardianship or compulsory treatment order under the Act. But referring the issue to a tribunal would be to ask the tribunal to substitute its judgment about the best way to treat a patient for that of the professional, or professionals, responsible. We do not agree that that is a relevant decision for the tribunal.
	It is interesting that the amendment does not propose that the tribunal set new conditions to substitute for those that the responsible clinician has sought to place in the case of a particular patient. We also think that these amendments might impose extra and unnecessary burdens on the tribunal, and extra bureaucracy on the tribunal and the responsible clinician. I stress again that, ultimately, the conditions laid out in new Section 17B "may" be specified, save for the condition,
	"that the patient make himself available for examination".
	A failure to observe one of those conditions would not lead to the—

Lord Carlile of Berriew: My Lords, let us suppose that one of the conditions under new Section 17B(3)(e) is that a person remains in their home from six o'clock in the evening until seven o'clock the following morning—the purpose being to prevent them from going out drinking, taking drugs or both. If the patient wishes to challenge that on the grounds that it is a disproportionate curfew in effect, which is exactly what has been done in the control order cases, what remedy would he have? What advice would the Government give to such a patient on how to proceed to have that condition rescinded on the grounds that it was disproportionate?

Lord Hunt of Kings Heath: My Lords, these are all hypothetical examples, but my assumption in that circumstance would be that discussion would have taken place between the patient and the clinical team, including the responsible clinician and the approved mental health practitioner. If it becomes clear that the patient would find that unacceptable and is unlikely to abide by it, that would call into question the decision that a community treatment order would be suitable in that patient's concern. That is the best answer I can give the noble Lord on that. We do not think that the kind of formality that is being proposed here, with the involvement of the tribunal, is the way forward. We believe that the way in which the provision is set out, whereby conditions may be satisfied, is a proportionate approach. I hope that the noble Earl on that basis will consider withdrawing his amendment.

Earl Howe: My Lords, I am grateful to the Minister for his reply, although it was disappointing. My fear here is that the Government are in danger of entering a minefield, if they ignore the human rights traps which they have set themselves. We would do well to listen to the noble Lord, Lord Carlile, whose expertise on these issues is undoubted—and I am sorry that the Minister is unable to appreciate the risks that I see in having an open-ended provision for conditions to be attached without qualification. For the reasons I stated, I believe that that could lead to some very unfair situations arising.
	I am extremely torn as to what to do, but I believe that the issue is sufficiently important for me to invite the House to give its opinion.

On Question, Whether the said amendment (No. 39) shall be agreed to?
	Their Lordships divided: Contents, 133; Not-Contents, 136.

Resolved in the negative, and amendment disagreed to accordingly.
	[Amendments Nos. 40 and 41 had been withdrawn from the Marshalled List.]
	[Amendments Nos. 41ZA to 43 not moved.]

Earl Howe: moved Amendment No. 44:
	Clause 26 , page 19, line 24, at end insert "for a maximum of three years in total"

Earl Howe: My Lords, this amendment is about time limits. One of the big worries that many of us have about CTOs is that, as formulated in the Bill, they are of indefinite duration. To my mind that is not acceptable. Let us just consider what kind of patient will be thought appropriate for supervised treatment in the community. It will typically be the patient who is coming to terms with his diagnosis and finding out which treatment is best for him. It will be someone who is trying to re-establish a life in the community, possibly after a lengthy period spent in a psychiatric institution. He will be in the throes of establishing a therapeutic relationship with the community treatment team and he will be starting to engage with the various community resources such as day centres and support services for employment and housing.
	That profile of a typical CTO patient is all about making the transition from being an in-patient to living a normal life in the community. If CTOs are seen as transitional in this sense, then patients should not be subject to indefinite renewals of supervised community treatment once they are on it.
	While a patient is on a CTO either he will get better or he won't. If he has got better, he should be discharged. If someone's condition has not improved to the extent that he can be discharged within a reasonable period—and the amendment proposes three years—that suggests that the CTO has failed to stabilise the patient's health sufficiently. If that is the conclusion, then his treatment needs reviewing properly. A review of this sort should take place in hospital and need not involve a long stay. Once that has happened, it may be thought appropriate for supervised community treatment to occur on a slightly different basis from before.
	In the Bill as published, setting aside the effect of the amendments passed earlier, the provisions for entry on to a CTO are very broad. A CTO can also be reviewed year on year without time limit. In those circumstances it may be very difficult for someone to prove that they no longer need to be placed on one, because there will always be an argument the other way. If the person's mental health has improved, the argument will be that he ought to remain under the order to maintain the improvement. If he deteriorates, that could also be seen as justifying the need to continue the order. So a CTO validates itself either way.
	Professor Genevra Richardson raised this concern with her memorable analogy of the lobster pot: a CTO will be relatively easy to get into but very difficult for a patient to get discharged from. A CTO can be renewed using the same broad grounds as those used to determine whether to place someone on a CTO in the first place. These are the reasons why, I believe, the aggregate period over which a CTO may be extended, including renewals, should be limited to three years. In other words, any extension of supervised community treatment after three years should require a new assessment under the Act. The amendment is in tune with the recommendation of the joint scrutiny committee, which proposed something very similar. Three years is a period which I am advised is sensible and reasonable for achieving the therapeutic objectives inherent in a CTO without restricting a person's liberty in an unacceptable, open-ended way. I expect that the Minister has been briefed to resist the idea but I hope that, at the very least, he will wish to take it away and reflect on it. I beg to move.

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Earl, Lord Howe, for his amendment, which seeks to set a time limit on the duration of a community treatment order. He is right to say that the Bill provides that a CTO can last six months initially, can be extended for a further six months, then for a further year and so on. I hope that I can reassure noble Lords about the possibility that patients will never get off supervised community treatment and can remain on community treatment orders indefinitely. I very much hope, as do the Government, that community treatment orders and supervised community treatment will enable many patients to be discharged as quickly as possible. The very basis of supervised community treatment can be seen as a positive move towards helping patients who originally met the criteria but, because of the impact of supervised community treatment, will no longer meet them and can be discharged completely. There is a clear, laid-down process for extending a community treatment order, which requires examination of the patient and a report to the hospital managers. There are safeguards in place for the patient.
	I understand the lobster pot analogy used by Professor Richardson, concerning patients who would find it very hard to get out of non-resident treatment. I share the view, as I have already implied, that supervised community treatment should not last indefinitely, but I am not convinced that the amendment is the right way to go about it. Any time limit that we might set is inevitably arbitrary. The noble Earl might have chosen two years or four years; it takes no account of any individual circumstances or of the patient's clinical condition. I suggest to the noble Earl that there is the danger of a "cliff-edge" approach, and the cut-off date might create that.
	It might leave the responsible clinician in a situation of a perverse incentive, where a patient would have to be discharged on a certain date, irrespective of their clinical need or whether they are able to manage in the community without the support that the community treatment order provides. Mental health practitioners might be in a very difficult position if they had to stand by knowing that a patient was likely to relapse and the only action that they could take if they were not prepared to, or it would not be right to, take the risk of discharging the patient would be to apply to detain the patient once more and the patient would have to come back into hospital. I understand what the noble Earl is seeking to do here, but there is a risk that by putting three years into legislation it could work the other way. It might be perceived as the norm, and there might be an expectation that patients remain on supervised community treatment until their three years are up.
	We believe that the construct of the Bill, with the safeguards, when the question of renewing the community treatment order is being considered, is the best way to deal with the issue rather than having an arbitrary time limit. Noble Lords should remember that a responsible clinician can discharge a patient at any time, and they must do so if the patient no longer meets the criteria for supervised community treatment as laid out in the Bill. That question has to be explicitly reviewed every time an extension of the community treatment order is considered. The patient can also apply to the tribunal for discharge as soon as a supervised community treatment order begins, once during each period for which the CTO is extended, and again if the CTO is revoked.
	In conclusion, although I fully understand what the noble Earl, Lord Howe, seeks to do, the conditions and safeguards in the Bill serve the purpose better than a time limit, which, of necessity, is bound to be arbitrary.

Earl Howe: My Lords, I thank the Minister for his reply and take note of his comments. He described the amendment as a "cliff edge approach". I do not share that analysis. The amendment would certainly not oblige a clinician to discharge a patient. The point is that it would leave open the option of a fresh assessment for the patient. In my view, that is only fair to the patient if, after three years, his condition has shown insufficient signs of improvement. We are seeking to avoid a situation where too few questions are asked. Once someone is on a CTO, it is very easy for a clinician to renew it with insufficient thought about whether it is the right thing to do therapeutically. Nevertheless, there is not going to be agreement between me and the Minister on this. It perhaps needs to be tested in the field before we see whether an open-ended arrangement is sensible and right. Noting the Minister's objections, and with my own reservations and doubts on the record, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 45 had been withdrawn from the Marshalled List.]

Earl Howe: moved Amendment No. 45A:
	Clause 26 , page 19, line 31, leave out from "report" to end of line 32 and insert ", in the prescribed form, that in his opinion the relevant conditions are met"
	On Question, amendment agreed to.
	[Amendment No. 46 had been withdrawn from the Marshalled List.]

Earl Howe: moved Amendments Nos. 46A and 47:
	Clause 26 , page 19, line 32, at end insert—
	"(4A) The responsible clinician may not furnish a report to the managers unless—
	(a) an approved mental health professional states in writing— (i) that he agrees with the opinion of the responsible clinician that the relevant conditions are met; (ii) that it is appropriate to make the order; and (b) if the responsible clinician is not a medical practitioner, a medical practitioner, as provided in section 17F(4A), has examined the patient and as a result of the medical examination it appears that the conditions mentioned in subsection (6) are satisfied in respect of the patient."
	Clause 26 , page 19, line 40, leave out from beginning to end of line 1 on page 20 and insert—
	"(b) except where a patient is detained under Part 3 of this Act (a patient concerned in criminal proceedings or under sentence), the patient's ability to make decisions about the provision of medical treatment is significantly impaired because of his mental disorder; (c) it is necessary for the protection of others from serious harm that he should receive treatment; (d) subject to his being liable to be recalled to hospital for medical treatment such treatment can be provided without his continuing to be detained in a hospital and it cannot be provided unless he is liable to be recalled to hospital; (e) the patient has on at least one occasion previous to the present admission under section 3 refused to accept medical treatment for a mental disorder; and (i) when appropriate medical treatment has been refused there has been a significant relapse in his mental or physical condition justifying compulsory admission to hospital; and (ii) medical treatment following compulsory admission alleviated or prevented a deterioration in his condition; (f) appropriate medical treatment is available for him."
	On Question, amendments agreed to.
	[Amendment No. 48 not moved.]
	Schedule 3 [Supervised community treatment: further amendments to 1983 Act]:
	[Amendments Nos. 49 to 50A not moved.]

Lord Patel of Bradford: moved Amendment No. 51:
	Schedule 3 , page 58, line 31, at end insert—
	"In section 121 of the 1983 Act (Mental Health Act Commission), after subsection (4) insert—
	"(4A) The Secretary of State shall, after consultation with the Commission and with such other bodies as appear to him to be concerned, direct the Commission to keep under review the care and treatment, or any other aspect of treatment, of all patients in hospitals, independent hospitals and in such other settings as he may decide who are subject to sections 4A and 4B of the Mental Capacity Act 2005.
	(4B) Where the Commission has good cause to suspect that a patient who is neither liable to be detained under this Act, nor subject to safeguards under sections 4A and 4B of the Mental Capacity Act 2005, is being deprived of his liberty as a consequence of admission to a hospital or an independent hospital, any person authorised by the Commission may—
	(a) visit and interview and, if he is a registered medical practitioner, examine in private that patient; (b) require the production of and inspect any records relating to the treatment and care of that patient, and (c) raise any concerns with the appropriate authority.""

Lord Patel of Bradford: My Lords, I will speak to Amendments Nos. 51 and 52. The Mental Health Act Commission is primarily a visitorial body, whose members meet patients detained under the Act and keep under review the powers and duties of the 1983 Act. It is a modern incarnation of an honourable, or at least relatively honourable, tradition of such bodies, stretching back to the seventh Earl of Shaftesbury's lunacy commissioners of the mid-19th century.
	In some ways, the lunacy commissioners had an easier task than that faced by the Mental Health Act Commission today. The landscape that they surveyed was largely one of asylums and private madhouses, within which most patients were subject to the legal powers that they were concerned to report on. But the increasing emphasis throughout the 20th century, rightly, on informal treatment has meant that most patients passing through the hospital systems today are not formally subject to legal powers and are out of the reach of the Mental Health Act Commission.
	I am not seeking to make the point that the Mental Health Act Commission should have under its purview all mental health services. Indeed, in discussions with the Government on their plans to merge the Mental Health Act Commission with other health and social care inspectorates, I have argued consistently for the protection of a visitorial role, with a primary focus on those who are deprived of liberty in the psychiatric system.
	The Mental Health Act Commission has been saying to various Governments for more than 20 years that not everyone who is deprived of liberty is subject to the formal powers of the 1983 Act. Our observations were confirmed by the European court rulings that have led to the so-called Bournewood proposals in this Bill. Even if Parliament accepts those proposals, and monitoring is established for the new legal framework for authorising deprivation of liberty, I guarantee to this House that there will still be patients who are subject to conditions amounting to deprivation of liberty without any formal powers and safeguards being invoked.
	In Committee, I remarked on the dreadful irony that the safeguard of Mental Health Act Commission visiting extends to those who are lawfully detained but not to those who are unlawfully detained. The law at present appears to require Mental Health Act commissioners to walk past those patients who may be incarcerated unlawfully in dirty, cell-like rooms on the grounds that formal powers under the 1983 Act have not been applied to deprive those patients of their liberty in a lawful manner. This amendment would simply allow the Mental Health Act Commission to have legitimate access to patients and records and to raise its concerns formally when it encounters worrying situations concerning informal patients or patients subject to the Bournewood provisions. I emphasise now, as I did in Committee, that this is not a call for extra resources, but a simple request that the Mental Health Act Commission be enabled to raise questions about patients that its commissioners cannot but notice while undertaking their current statutory duties.
	I have revised my amendment since Committee, having taken account of the Government's correct concern at the earlier drafting, which implied that a statutory body could "keep under review" the unlawful treatment of patients. I have rephrased the amendment to be more specific about what the statutory powers should be when the Mental Health Act Commission encounters de facto detained patients.
	In Committee, I said in response to the Minister that I could not accept his assurance that legal safeguards would be addressed in future legislation to merge current health and social care inspectorates. I cannot see why we should not take this opportunity to amend the commission's remit now and provide some protections in the interim period, even if these measures will eventually be overtaken by events. The Minister knows well that existing powers under the 1983 Act enable the commission's remit to be extended in the way that I suggest here. He will also know that our request for an extension of similar effect has been extant since 1985.
	I believe that I have the support of many noble friends in this House and I hope that the Minister will be able to respond to my amendment in a constructive manner. I beg to move.

Baroness Royall of Blaisdon: My Lords, the noble Lord, Lord Patel, argued as persuasively for this amendment today as he did in Committee for a slightly different amendment. However, he will be glad to hear that we have some sympathy with the amendment, although there are a couple of important things to bear in mind.
	First, as the noble Lord noted, there is current work to establish a new single regulator in England replacing the Mental Health Act Commission, the Healthcare Commission and the Commission for Social Care Inspection. We argue that the issue in the amendment of the noble Lord, Lord Patel, sits comfortably with that work and will be considered as part of the creation of the new regulator during 2008.
	Secondly, the amendment may cut across monitoring proposals for the Bournewood safeguards. The statement of intent that we have published outlines how the monitoring function will be conferred on the three existing inspectorates in England, including the Mental Health Act Commission. After the establishment of the new single regulator, the function would transfer to that body. We would not wish to establish powers that might not dovetail with that.
	The amendment is unnecessary because provision to achieve the intention behind it is already contained in the Mental Health Act 1983. The Act gives the Secretary of State and the National Assembly for Wales a duty to keep under review the powers and duties relating to detained patients and directs her to delegate that duty to the Mental Health Act Commission. Section 121(4) allows the Secretary of State, following a request from or after consultation with the commission, and after any other consultation that she sees fit, to direct the commission to keep under review the care and treatment of any patients not liable to be detained.
	However, I can give noble Lords a commitment that we will explore making a direction under Section 121(4). This will be no quick fix, because we are required to carry out a consultation and we would need to have discussions with colleagues in the Welsh Assembly Government to explore the options available there. Any future work in respect of Wales, including a formal consultation, would of course require the agreement of Welsh Ministers. However, on that basis and with that firm commitment, I invite the noble Lord to withdraw his amendment.

Lord Patel: My Lords, on a pleasant note, I thank the Minister for agreeing to look at this further and for recognising that we can address these issues using the existing powers of the 1983 Act. She will be aware that the Mental Health Act Commission has submitted a formal request for existing powers to be used to put a stop to the arbitrary limitations in relation to its inability to address de facto detained patients. I am keen to work with the Government and I await their response to the request that we have already submitted. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 52 and 53 not moved.]

Baroness Royall of Blaisdon: moved Amendment No. 54:
	Schedule 3, page 60, line 14, leave out paragraph 35 and insert—
	"Extent
	35 (1) In section 146 (application to Scotland), omit the words from "128" to "guardianship)".
	(2) This paragraph does not extend to Scotland."

Baroness Royall of Blaisdon: My Lords, this group of amendments relates to cross-border issues. The majority of them follow from changes made in Scotland which amend the Mental Health Act 1983; the others seek to clarify the position of patients granted escorted leave from elsewhere in the UK or from the Channel Islands or the Isle of Man who wish to visit England and Wales.
	Amendments Nos. 54, 62 to 65, 90 to 93, 96 and 97 have been laid because of amendments brought forward by the Scottish Executive, in the consideration of the Adult Support and Protection (Scotland) Bill, which amend the Mental Health Act 1983 in relation to Scotland. The ASP Bill was passed by the Scottish Parliament on 15 February; it is expected to receive Royal Assent in March 2007 and to come into force in spring 2008. It will repeal Sections 88 and 128 and remove the references to these provisions in Section 146 of the Mental Health Act 1983, but only as a matter of Scottish law. These amendments reflect the changes made in Scotland to the Mental Health Act 1983 and apply them to the rest of the UK. Their effect will not have a practical impact on the care of patients in Scotland or in the rest of the UK; they simply align the law in Scotland and the law in the rest of the UK. I commend the amendments to your Lordships' House.
	Amendments Nos. 61 and 66 clarify the position of patients on escorted leave in England and Wales from elsewhere in the UK or from the Channel Islands or the Isle of Man, and the legal powers of their escorts. Under Section 17 of the 1983 Act, the clinician giving leave to a detained patient may determine that it is necessary in a patient's own interests, or for the protection of others, that the patient remains in custody or be escorted during a leave of absence. Section 137 provides that a patient granted escorted leave in England and Wales is deemed to be in the legal custody of their escort. Section 138 provides for the retaking of a patient who escapes from such lawful custody.
	Amendment No 61, by adding two subsections to Section 17, will engage these provisions for patients on escorted leave in England and Wales from other jurisdictions. The effect is to put beyond doubt that a patient who is granted leave in another jurisdiction, under a provision corresponding to Section 17, may be conveyed, kept in custody or detained by their escort while in England and Wales and retaken in the event that they escape. This will benefit patients from other jurisdictions, particularly those in hospitals outside England and Wales whose relatives live in England and Wales. A clinician is more likely to grant escorted leave into England and Wales if the patient's health and safety and the health and safety of others can be protected and the legal position is clear. Other jurisdictions are considering similar legislation to ensure that a patient on escorted leave from a hospital in England and Wales is deemed to be in legal custody and that there is a power to retake a patient who escapes from lawful custody.
	Amendment No. 66 is consequential. It amends regulations that apply to people who may be taken into custody under Scottish legislation so that regulations may be made in respect of patients on leave in Scotland from another jurisdiction. I beg to move.

Earl Howe: My Lords, my noble friend Lady Carnegy, who unfortunately cannot be here, has asked me to express her thanks to the Minister for the letter that she kindly wrote on 11 January in response to a point made on these issues by my noble friend on 10 January.
	My noble friend has, however, asked me to put a question. Let us suppose that a patient is detained north of the Border under Scottish law and a proposal is made for that patient to be transferred nearer to his or her family south of the Border. My noble friend's fear is that, unless the basis on which the patient is detained in Scotland accords with English law, it will not be possible to transfer that patient because, were they to be transferred south of the Border, they would have to be released, which would not of course be satisfactory. Does not a practical problem arise out of the disparity between Scottish law and the Bill?

Baroness Royall of Blaisdon: My Lords, there is the potential in theory for a patient to meet the criteria for compulsion in one country and not another. In practice, however, that is very unlikely to arise. Prior to any transfer taking place, there will be discussions between the hospital where the patient is being treated and the hospital to which they wish to transfer. It would be questionable whether, as a matter of law, the managers of a hospital in any jurisdiction could agree to accept, as a detained patient, a person who they may have reason to think would not meet the criteria for detention. I trust that that clarifies the position for the noble Earl.

On Question, amendment agreed to.

Lord Hunt of Kings Heath: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that Report stage begin again not before 8.31 pm.

Moved accordingly, and, on Question, Motion agreed to.

English for Speakers of Other Languages

Lord Greaves: rose to ask Her Majesty's Government what provision they will make for the teaching of English for speakers of other languages in England in the next academic year.
	My Lords, this debate is about the provision of English for speakers of other languages (ESOL) in the financial year from this summer. I should declare the interest that my wife is an ESOL teacher.
	This debate is timely; there will be an important lobby on Wednesday, which has been organised by the University and College Union and many other bodies on behalf of the "Save ESOL" campaign. I pay tribute to those who organised this campaign and the many people around the country who expressed considerable concern about the Government's proposals. I thank those noble Lords who want to speak in this short debate. I will listen with great interest to the Minister's reply.
	This is a many-faceted and complex issue. I shall put my own slant on it based on the area that I know best: the Pendle and Burnley area in east Lancashire. What is proposed? The Learning and Skills Council, with the Government's support, proposes to restrict access to free ESOL classes from this summer. The suggestion is that, apart from those who will be excused fees, people should pay 30 per cent of fees this year, rising to 50 per cent in 2010. ESOL classes lead to examinations under the Skills for Life programme at five different levels: the entry level, E1, which is for beginners; E2; E3, which is the benchmark for the citizenship test; and levels one and two, at which stage one might be able to take GCSEs. They are about speaking, listening, reading and writing; in other words, they are about basic language skills, which are the key to so many things that make a full life possible, and which the Government say they believe in.
	What are the Government's beliefs in this regard? They have a belief in citizenship: it is very important to be a full and active citizen in this country and for people to be able to communicate, and that means fluency in English. They believe in the integration of individuals in the communities in which they live and work and in the integration of communities. Five or six years ago, after the disturbances in some northern cities, there was much talk about parallel communities. We had the Cantle report, the Ouseley report and the report from the Burnley taskforce and the noble Lord, Lord Clarke of Hampstead. The underlying tale in the reports was of the dangers of allowing communities to develop, live and exist separately from the wider community.
	In the Pendle and Burnley area, we have a large south Asian community; it is a very traditional community in many ways but it has a great deal to offer. If left without any positive action, it is likely to suffer from the parallel communities problem. Along with those aims and objectives, there is the overriding aim of social cohesion. All those are fundamentally linked to the acquisition of language skills.
	Who will miss out under the Government's proposals? It will vary a lot in different parts of the country. My understanding is that Nelson and Colne College, in the area where I live, is planning for a 50 per cent cut in ESOL numbers next year. Low-paid workers will miss out. They may be migrant workers or members of ethnic-minority communities on the minimum wage or below—plenty of people are paid less than the minimum wage—or part-time workers, who may be paid the minimum hourly wage but have a take-home pay each week that is a lot less.
	The second group of those who will miss out, on which I want to concentrate, is non-employed people—people without jobs who are not unemployed. Many are women who used to be called housewives; nowadays a more politically correct description appears to be "carers in the home". This involves women who work in the home and keep the family and the home going but who do not have a job—they have never had them—and are therefore not entitled to benefits. There are also older men who may have come to this country 30 or 40 years ago to work night shifts in the mills. Those nightshift workers were almost all Asian and did not need English to work. They are now cut off from proper participation in the wider society because of their lack of English. There are also asylum seekers, whom my noble friend Lord Avebury will discuss. Our experience in Nelson is that the ability of asylum seekers to go to ESOL classes from the moment they arrived was a very important part of encouraging and enabling them to live in the local community.
	I want to talk in particular about women. In many ways this is a feminist issue. The Nelson-Colne experience in the past few years is that an increasing number of women of all ages have attended ESOL classes. Some of them are young marrieds, fresh over from the Indian subcontinent; others are mothers who have been here for 30 years, have never found the opportunity or necessity to learn English but have now plucked up the courage to go to ESOL classes. Unfortunately, a traditional aspect in south Asian communities in such areas is that, if those women have to pay, they must get funding from the rest of the family because in many cases they have no money of their own. Given the choice of sending young or older women, or young men—who may have come from south Asia and lack English but who need that ability to get a job—they will choose the young men. Many of these women have been very brave: they have overcome the great reluctance—and, in some cases, opposition—of many of the men folk in their families to go to these classes. The future is bleak for that group.
	I want to refer to two initiatives among many in my part of the world. The Briefield Women's Group, run by Councillor Naseem Shabnam, a colleague of mine, is a multicultural group, half of whose members are white and the other half Asian. It is a real breakthrough. It is a local campaigning and social group in the small town of Briefield.
	In Nelson, there is a very exciting regeneration project called the Whitefield Regeneration Partnership. It is regenerating an area of rundown and old terraced houses, many of which are empty, in a heritage-based way in a mainly Asian area. It is innovative and exciting and it will be tremendous. Lesley Chisnell-Helm, the secretary of the Whitefield Community Forum, which is the residents' group, has recently been organising meetings of Asian mothers from the local school and playgroup. These people are excited and have very strong ideas, which are not necessarily the same as those of the men folk from those families. Those are just two groups among many where women are beginning to take part in the community. They are beginning to break down the barriers not just between the communities but within their own community. However, they need language skills to do that and, without such skills, this kind of initiative is impossible.
	Some people referred to language-isolated communities. There are certainly many language-isolated households where the common language is not English and where the television is often tuned to a satellite station that does not broadcast in English. It is vital that the women in these households learn English. It is linked to many of the Government's general objectives and to the education of very young children. If more English were spoken, including by mothers, these children would not start with the handicaps that they have when they go to school, and indeed they could take part in the education of the older children.
	Learning English is also important for children's health and well-being, the regeneration of areas, as I have suggested, integration and cohesion, and friendships across the cultural divide. It is essential that individual friendships develop between people in different communities but, if there is no common language, that will be impossible.
	I want to finish by asking the Government some questions. First, have they carried out an assessment of the likely fee levels, and how much are they likely to vary from college to college? Is £300 for 30 weeks, at four hours a week, the kind of level that people might be talking about? Secondly, what proportion of existing students is likely to get the full fee remission? It must be possible to know that because we know who the existing students are. Thirdly, what research have the Government done on the elasticity of demand following the introduction of ESOL fees? In other words, what do they believe the drop-out rate will be? Fourthly, what research have they undertaken into the willingness of employers of migrant workers to pay fees for ESOL classes? Finally, what is the expected increase in class sizes under the new system, which I gather will take place, and what effect do the Government think it will have on the quality of provision?
	I want to read to noble Lords an examination answer from an E3 student in response to being asked to:
	"Write an email to a friend who is coming to England and wants advice on learning English".
	The answer read:
	"Hello ... Don't worry. I started to learn English when I was 10 years old from my school. When I had finished my school I only remembered one poetry.
	ABCDEFG John is hiding far from meLooking here, looking there,I can't see him anywhereIs hiding
	When I came to England, I went straight to the learning centre. For myself was very easy to learn words, but difficult grammar.
	Now I want to write, what Walt Whitman (USA) told about language:
	'Language is not an abstract construction of the learned or of dictionary-makers, but is something arising out of the work, needs, ties, joys, tastes of long generations of humanity, and has its bases broad and low, close to the ground'".
	That really describes the present system of ESOL provision. It is broad and low; it is close to the ground. The student ended by saying, "Take care". I ask the Government to take a little more care with the ESOL provision in this country.

Baroness Crawley: My Lords, perhaps I may guide noble Lords. The digital clock was out by four minutes.

Lord Avebury: My Lords, my noble friend has convincingly demonstrated the proposition that he put to your Lordships at the beginning of his speech: that the acquisition of language skills is fundamental to social cohesion. That is certainly the case in my noble friend's area, where ESOL provision has been, and should continue to be, the key to the social cohesion of his constituency.
	However, as my noble friend said, I want to focus, in particular, on the decision to stop ESOL for asylum seekers. I consider this a particularly unpleasant idea which is based on false assumptions and is detrimental to the public interest. The Minister, Bill Rammell, in his Guardian article of 16 January headed, "We cannot sustain current levels of funding for ESOL provision", justified the withdrawal of tuition from asylum seekers over the age of 19 on the grounds that taxpayers' money should not be used to support the learning of English by people who are expected to leave the country. At the same time, he extolled the IND's success in determining 80 per cent of applications within eight weeks, half of them leading to refusals.
	According to the latest Home Office statistics, the number of asylum claims has been falling steadily since 2003, so these applicants are not responsible for the,
	"massive increase in demand for free ESOL tuition",
	to which the Minister referred in that article. Both the smaller numbers and the speeding up of determinations will have reduced the cost of ESOL tuition for asylum seekers, although the actual figure is 69 per cent of applications determined within eight weeks, not 80 per cent as the Minister claimed, and the figure has been going down.
	Roughly, 20 per cent of the applicants are given leave to remain and another 20 per cent succeed on first appeal. In all, something like half of all applicants are allowed to stay here by the time they have been through the whole process and not 30 per cent, as alleged by Mr Rammell on the BBC programme "The Learning Curve" yesterday evening. So, if all asylum seekers were equally likely to end up permanently settled in the UK, half the spending on free English tuition for them would be not only reasonable but imperative if they are to put their talents to full use for the benefit of themselves, their families and the host community. By giving successful applicants a head start in the job market, we have been helping them to contribute to the economy and to repay, through their taxes, the cost of the services that they receive.
	In fact, the proportion of spending on those who are likely to be unsuccessful will be much lower than 50 per cent because most of them already are not eligible for ESOL classes. Those who are sent to other EU countries under the Dublin convention, non-suspensive appeal cases—that is, people who do not have a right of appeal in the UK—and those who are fast-tracked are here for much shorter periods and they do not qualify for ESOL tuition at the moment. When you deduct all those categories, the proportion of the remainder who finally get leave to remain is well over 50 per cent, but evidently Mr Rammell's advisers failed to provide him with that information. So the evidence on which the Government base their case is wrong.
	There are also those who, for practical reasons, cannot be sent back to their countries of origin. They include, for the indefinite future, Eritreans, Zimbabweans, Somalis and Iranians. Of course, most Zimbabweans speak good English, but their gripe has been that they do not have access to other types of courses, such as IT, so they should also be deducted from the total of unsuccessful asylum seekers whose participation in ESOL is, according to the Minister, a waste of money.
	If there is no prospect in the foreseeable future of removing people who come from other countries, the very least that we can do for them is to help them to speak our language. Bristol, for example, has a large Somali community, among whom ESOL courses in the City of Bristol College are popular. Does the Minister think that it makes any sense to put obstacles in the path of Somali asylum seekers, two-thirds of whom are given leave to remain, while the remainder are likely to gain permanent settlement sooner or later because we cannot send them back?
	The Commission on Integration and Cohesion has identified lack of English as,
	"a critical barrier to integration and cohesion for new arrivals".
	The Government recognise in their strategy document for refugee integration that English-language proficiency is a key factor in accessing the labour market, mainstream services such as Jobcentre Plus call centres, and successfully integrating into UK society.
	In welcoming the decision to continue funding for asylum seekers aged 16 to 18, the chief executive of the Refugee Council says that early entry to English courses is important for all ages if they are to communicate and function effectively, and competence in English means that they are less dependent on support services and better able to make connections with their local community.
	Bill Rammell claims that the cuts in ESOL are not intended to save money but to ensure that places on courses are taken by those in greatest need. Excluding destitute asylum seekers from access to our language is mean, inhumane, and perverse and a false economy that will delay the entry of refugees into full participation in British society and the Government should think again.

Baroness Maddock: My Lords, I hope my intervention will be brief. It is based on my experiences, first, as a native English speaker; secondly, as someone who, many years ago, taught English as a second language to multinational groups; and, thirdly, as someone who arrived in a country whose language I could not speak. Speakers before me have indicated how important verbal communication is: if one is to interact with one's fellow human beings, it is essential; it is vital if one is to feel part of a community; and it is vital if one is to understand the society in which one lives, its governance, how to access services and how to be part of the community.
	Earlier today, I was struck by the fact that in much of what one is required to do in this country one has to access the internet, which is all in English. As English speakers, we have had it very easy. Many people in the world speak English, but most native English speakers have not had to grapple with not understanding what is going on around them. I wonder whether that is why we are rather poor at understanding the importance of people being able to speak our language when they come to live here.
	More than 35 years ago, I went to live in Sweden. I did not know any Swedish and I thought I was pretty lousy at languages. I had passed O-level French, but my ability to speak it was fairly limited. What is it like to arrive in a new environment? It is very disconcerting because there is a lot of noise around you and you cannot even understand where words start and finish. That starts to improve after a while, but it is very isolating and quite frightening. I remember being on the underground in Stockholm and listening to the noises and not knowing what they meant. I also spent a little time living in Germany and know that Germanic rules are very important. In Sweden and in Germany, if one does not understand the language it can be quite disconcerting.
	English people are very bad at understanding that. In most of the countries that we visit, people understand English. In Sweden, if I really needed to get to grips with something, wherever I went, someone was able to understand English. In my early days in Sweden, I can still remember trying to find something in their equivalent of Woolworths and tentatively asking the assistant in English, to which she said, "It's just in the second aisle on the left". I remember thinking, "Gosh, would that have happened in Woolworths in England?".
	I started to teach English as a second language in that environment. In Sweden, then, as now, one had free tuition in their language. Every week I used to go to the classes, although everyone else went twice a week—I could go only once a week because I was teaching English. That was incredibly frustrating. Having been there for a while, my present husband was getting rather good at Swedish, whereas I was pretty awful. Eventually, I had some time off and so I attended a course for 20 days—every weekday for a month. Swedish courses were free if you were a foreigner in Sweden and, although I started off very haltingly, by the end I was relatively fluent in everyday Swedish.
	Those experiences, including being a teacher, have led me to believe that if one wants to get the best value out of teaching people English the courses need to be intensive. On an intensive course, one speaks the language every day and does not lose what one learnt the day before. If one attends a course once a week and then returns to one's own environment and speaks one's own language for the rest of the week, it does not work so well.
	My message to the Government—my noble friends know about the day-to-day problems in England today and I am not involved with teaching English as a second language any more—is that it is really important for people to be part of the community and the culture and to be able to speak the language. If one is serious about it, intensive courses are by far the best and charging people is not the way to go. In Scandinavia and in other parts of Europe, where not many foreign people speak their language, they understand what it is like not to understand the language of the community in which they live and they are far more willing to provide free language teaching. To charge people is a very backward step and one will achieve far better value for money if one provides people with an opportunity to attend intensive courses in English rather than courses that are spread out over a longer period.
	I congratulate my noble friend on initiating the debate. It is very important. Quite frankly, I was dismayed when I heard on the news that the Government thought that it was acceptable to start charging people to learn English, when common sense tells us that this is a key point if we are to try to make our communities cohesive.

Baroness Thomas of Winchester: My Lords, I, too, congratulate my noble friend Lord Greaves on introducing this important debate on the vexed question of the future funding of ESOL classes. It is essential that classes up to the basic level should remain free. It is surely to the advantage of everyone in the United Kingdom that as many of our population as possible speak English; it is in the interests of all aspects of social inclusion and cohesion, in the interests of employers and of the whole workforce, and not least the interests of health and safety. The Government recognise that, which is presumably why, in 2001, they tripled the funding for the Skills for Life programme of which ESOL is a part. ESOL classes have been a runaway success and are now hopelessly oversubscribed in many parts of the country, with up to 1,400 on the waiting list for colleges in London.
	In an exchange at Question Time on 1 November, the Minister was emphatic that the charge being made for ESOL classes from August this year, except for those on benefits, will not be prohibitive, but many in the area disagree. A fee of £300 for a six-hours-a-week course is one estimate, as my noble friend said. The timing of this change could not be worse. Only a few weeks ago the Minister for Employment and Welfare Reform said that at least 40,000 people do not have the language skills to get a job and that state benefits might be withheld from those who do not make an effort to learn English. Just two months ago the Leitch report emphasised the importance of up-skilling the workforce. The report says:
	"More flexible migration flows increase the need to ensure that migrant workers are fully integrated into the existing labour force and that they are at their most productive. However, for many migrants integration is made more difficult by language barriers".
	There is a huge reservoir of valuable skills among those attending ESOL classes, skills that we badly need in this country.
	Also in the news recently has been a huge demand for translation services far greater than in any other EU country. I have recently learnt that the professional translation service is in despair at the haphazard way in which translating now happens, with non-accredited translators regularly being used by the police and healthcare providers in many parts of the country. That is a debate for another day but it is yet more evidence that making the teaching of basic English widely and freely available throughout the country would be cost-effective because translation services are so expensive. As far as employers are concerned, many of those running both large and medium-sized businesses are doing their bit by laying on English classes for their non-English-speaking employees. It is unrealistic to expect a small employer with just two or three employees to do this in a competitive environment where survival is all important.
	One consequence of charging for ESOL classes would be a big increase in administrative costs. How will colleges cope when even more of their clients ask for help in claiming benefits to which they may be entitled in order to access free classes? The benefits field is not simple, even to those who speak perfect English. Either the college will have to increase its administrative staff, or it may simply have to turn away those who cannot afford to pay.
	In preparing for this debate, I contacted one rural college in the west Midlands and one London college. In the rural area, classes were attended by the large number of seasonal agricultural workers from the new EU accession countries who had decided to settle there. Classes there are being partly funded by the European Social Fund programme for pre-employment training. ESOL classes will therefore remain free until May 2008, and the staff are extremely concerned about what will happen after that. In that part of the world, as elsewhere, there are also informal classes arranged through the churches in the area, often taught by retired teachers, to meet the high demand.
	At the London college, the clientele was, interestingly, 75 per cent middle-aged women, including a high number of Kosovans and Sri Lankans as well as eastern Europeans. The college made the point that, last year, funding was cut for the pre-entry and assessment courses assisting those who are often illiterate in their own language, let alone ours, but who are having to be taught with those on level 2; that is, highly educated and articulate people who want to improve their English. Having the two groups taught together has made life difficult for everyone.
	Finally, although it has already been mentioned, I must again make the point that there are patriarchal elements within some minority communities that use women's inability to understand the English language as a means of keeping them dependent, isolated from wider British culture and oppressed. The introduction of charges for courses makes it easier for the men in these communities to deny economically inactive women the opportunity of enrolling on courses. With free classes, women are currently better able to resist pressure that their needs should not come before those of their husband, children and extended family.
	It is surely a false economy at this stage in the life of our country—when the economy is doing well out of migrant workers on one hand and the integration of so many culturally diverse groups is at the top of the agenda on the other—for the Government to cheese-pare by charging for the most basic skill of all: speaking our language. I urge them to think again.

Baroness Walmsley: My Lords, I congratulate my noble friend Lord Greaves on introducing this debate on a serious subject. Despite it being serious, I shall start with a joke. What do you call somebody who speaks four languages? Multilingual. What do you call somebody who speaks two languages? Bilingual. What do you call somebody who speaks one language? The answer, as my noble friend Lord Greaves has muttered from his place, is English.
	In that situation, it is particularly important that those who want to come and live in our country should have easy and free access to learning how to speak English; we certainly do not know their language. The decision to limit access to free ESOL is one of the most mystifying, contradictory, downright dangerous and short-sighted decisions that the Government have made in their whole term of office. It seems perverse to make English a condition of citizenship and then restrict access to learning it. Do we not want the people who come to live in our country to become active and committed citizens?
	The Government have four objectives, on which I shall comment. First, they say they want social cohesion and integration. Secondly, they want to attract migrant workers to fill the skills gap that we are all aware of in our economy. Thirdly, they say they want to reduce the isolation of many immigrant women working just in the home and not the workplace; I agree with my noble friend Lord Greaves that ESOL is a feminist issue. Fourthly, the Government say that they want to reduce the achievement gap between indigenous children and those in certain immigrant communities. Yet they are planning to cut access to the one tool guaranteed to help in all four situations.
	For many products, where there is excess demand, the supplier simply raises the price. This soon effectively reduces demand. As we have heard, there is certainly excess demand for ESOL; many colleges have closed their long waiting lists. But ESOL is no ordinary product. It is a basic skill, more fundamental even than the literacy and numeracy on which the Government concentrate, as the queues for courses demonstrate.
	Taking those objectives in turn, on integration and social cohesion, the Government are dispersing asylum seekers to all parts of the country, many of which have not had to deal with a lot of migrants before. Deprived of the support of their fellow countrymen, who may have been here longer and learned some English, some migrant families flounder, unable even to access basic services. They do not know their rights, and find it difficult to complete the forms necessary to access benefits.
	The Government tell us that those who work should pay for their own courses, and that most asylum applications are processed in eight weeks with 70 per cent of applicants being refused, although my noble friend Lord Avebury carefully disputed those figures. Of course, applicants are not allowed to work while waiting, so why not let them do something useful like learning English during that time? The Government do not know any more than I do which 30 or 50 per cent will be allowed to stay and commence seeking work, so it seems mad not to let all of them prepare for work by giving free access to English teaching while waiting for a decision. Indeed, if we want social cohesion, it is vital that asylum seekers and immigrants are able to communicate with those living in the communities to which they are dispersed. When we can talk with and get to know people, we often find that they are nice, good people who we want to take to our hearts and into our communities, not people to fear and attack. It is important for social cohesion that we give people the opportunity to learn English.
	Secondly, the Government need migrant workers to fill the skills gap. Yet only 3 per cent of migrant workers access the tax credits needed to qualify for free ESOL in future, not least because there is a 15-page form to fill in, which would challenge the most fluent of us. We know that eight out of 10 migrant workers earn between £4.40 and £5.99 per hour. They are caught in a trap. Without good English, they cannot gain the qualifications needed to get better paid jobs.
	Thirdly, on women and children, many asylum-seeking women or those who have emigrated to this country are not economically active, as my noble friends have said, because they have no English, and therefore work in the home. Because they are not seeking work, they have no benefit entitlement. Even if the family obtains leave to remain, the situation often continues. Women are isolated in their own homes, and are vulnerable to ill treatment by their husbands. I do not wish to suggest that this is a common occurrence, but it does happen. Without English, the woman is trapped. Her children go to school and learn English there. She cannot help them with their lessons; she does not go to parents' evenings, because she cannot communicate with the teachers; she therefore cannot help her children if they suffer bullying or have special needs that are not being addressed. The children often become interpreters for their parents, an additional burden on a child already struggling with a strange language, a new country and a foreign culture. The Government can surely see that expecting employers to pay is not going to help these women. The academic achievement of their children is also jeopardised if the whole family is not helped to become fluent English speakers.
	On a related point, can the Minister clarify the situation of trafficked women in relation to free English teaching?
	Like my noble friend Lady Thomas of Winchester, I am concerned that these changes will hit supply. Colleges that operated a nice, simple, full fee remission system will now have to check students' eligibility. The administrative burden of having to get the money from participants and employers, as well as from the DfES, is already bringing about the closure of courses. Colleges can no longer plan long term when there is no certainty on funding.
	I acknowledge the increase in spending on ESOL over recent years, but that is offset by the saving to the country in not educating skilled and unskilled workers who were educated in their own country of origin. We need them here; the cost of teaching them English is a small, up-front investment in the taxes that they will pay and the contribution that they will make to our economy in future years.

Baroness Verma: My Lords, I too wish to thank the noble Lord, Lord Greaves, for calling this debate. This Question not only highlights the specific issue of how to reorganise the teaching of English to speakers of other languages following the funding crisis, but indicates clearly the challenge in the wider social integration of non-English-speaking people settling in England. Immigration is a central challenge in modern society. The movement into this country of people from foreign countries has been, and continues to be, of great economic and social benefit—but that must be considered in the most constructive, productive and realistic light.
	The Question from the noble Lord, Lord Greaves, could not be more timely or necessary. The recent U-turn by the Government on their policy of completely realigning ESOL provision has resulted in a situation where, from the 2007-08 academic year, tuition will only be available to what the Government have determined as priority groups—that is to say, people who are unemployed or receiving income-based benefits. Noble Lords will be aware that those changes were followed by the announcement by the LSC that the QCA are to accredit a new range of ESOL international qualifications that seek to provide English teaching aimed at getting people into the workplace—English at a far more basic level than previously provided in free ESOL training.
	The provision of language training for speakers of other languages is beset with difficulties. Surely the central challenge is ensuring that language teaching, which can provide not only excellent economic value for money but reaps enormous rewards in social and community cohesion, is provided at a level that ensures long-lasting results and is sustainably funded. The recent turnaround by the Government makes it clear that current provision is overstretched and in danger of underperforming. That is due, in part, to their severe underestimate of the scale of immigration following the A8 accession. Around the country, it has been impossible for further education institutions to provide the teaching for which the Government so willingly wrote a blank cheque in 2004. Some 510,000 applicants registered to work in the UK following the accession of eight further countries to the EU in 2004. The Minister in another place, Tony McNulty, has estimated that that figure rises to 600,000 including self-employed individuals—and spending in the last three years from central government through the LSC has corresponded to those places. The LSC has spent £279 million funding almost 540,000 places in ESOL.
	The situation is at breaking point, a fact acknowledged freely by the Government themselves. The Minister in another place, Phil Hope, stated in response to Written Questions just a few weeks ago that:
	"ESOL provision in England is growing at an unsustainable level and there are waiting lists for courses in most key regions, particularly in London ... it is clear that something needs to be done".—[Official Report, Commons, 1/2/07; col. 487W.]
	Does the Minister agree with his honourable friend's diagnosis of the current situation? I should be grateful if he could inform noble Lords whether he acknowledges that the Government have failed to accept the true scale of possible immigration following the A8—and that had they accounted for it then, instead of a funding crisis resulting in off-the-cuff policy and the complete reworking of language teaching that we now face, the last three years could have been better spent providing language on a consistent and sustainable level.
	The provision of language teaching is essential, and I am concerned that the next academic year will be just one more in a wave of badly planned policy. How many volunteer teaching schemes are in place? The mother of my noble friend Lady Morris of Bolton was part of a scheme attached to Bolton College allowing individuals to visit private residences to give out-of-hours English teaching. That is a fantastic scheme, one that not only helps with the practical learning of the language but provides a private contact within the local community. I was disappointed to read of the BBC investigation, published two weeks ago, stating that over £100 million of public money is spent on translation services—with £25 million of that spent by local authorities on things like refuse collection guidelines and one-to-one "stop smoking" sessions, to name but a few.
	The Government's own Commission on Integration and Cohesion has called for a change in policy on translation, highlighting the fact that,
	"translation services should be there to help people adapt, not replacing the language. If they are provided for too long, they can become a crutch for people to get by without learning the English they need to integrate successfully".
	Clearly, local authorities are compelled to come up with short-term solutions to language barriers in order to preserve what community cohesion there is. Surely it would be more productive to progressively rechannel funding from translation services to the teaching of English for speakers of other languages. We have come a long way from mother-tongue teaching, but this new policy should reflect so much more than a resolution to a funding crisis. What consideration has the Minister given to the fact that if English language provision is curtailed as soon as someone enters the job market with a basic level of English, that person, who is already contributing to the economy, stands to remain at exactly that point? Can the Minister inform noble Lords whether the Government will encourage the current provision that provides the needed results?
	Mastering a country's language is vital to the successful integration of migrants in their communities and in progression to the society as a whole. Dr Darra Singh, the chair of the Commission on Integration and Cohesion, summed that up expertly when he stated at the time of the CIC interim statement that:
	"If you can't speak English—whether you are a new migrant or someone who has lived here for years—you are on a path to isolation and separation".
	This is at the heart of the matter, and its resolution can and should be a two-way process.

Lord Adonis: My Lords, the House is grateful to the noble Lord, Lord Greaves, for raising the important issue of teaching English to speakers of other languages and for the perspective that he brings to the subject from his experience and that of his wife in Pendle and Burnley. As the noble Lord said, nothing is more important to our country than that all our citizens should have effective English-language skills. Without that, we will not create a fair or an integrated society, least of all in an age of substantial migration.
	My honourable friend Bill Rammell, the Minister of State for Lifelong Learning, Further and Higher Education, will be paying close attention to this debate, and I will draw to his attention all the points that have been raised by noble Lords. Indeed, he is speaking at the rally mentioned by the noble Lord. Perhaps by saying that, I will encourage even more people to attend. My honourable friend takes his responsibilities in this area very seriously and intends to be present. I am also grateful to the noble Baroness, Lady Maddock, for addressing us in English, not Swedish. She would have made her point very effectively if she had tried us in another language, but she enabled me to follow closely what she was saying.
	The straight factual answer to the question posed by the noble Lord, Lord Greaves, is that the Government, through the Learning and Skills Council, will make available about £300 million for colleges and other organisations to provide for the teaching of English to speakers of other languages in the next academic year. I cannot be precise about the sum because the final figure will depend on local planning within the overall adult learning budget of the Learning and Skills Council, which will be £2.841 billion for the financial year 2007-08. The figure of about £300 million is about the same as indicative funding available for ESOL this year and last year—there have been no cuts in the budgets—and it represents a threefold increase on the funding available as recently as the financial year 2000-01, when it stood at £103 million. The Government's bona fides in supporting this important area of teaching are strong, and it is not the case that there are cuts in the national budget.
	The concerns in this debate are whether the provision is sufficient and what more we could and should be doing, so I shall address those wider issues. Since 2001, state funding for ESOL courses has tripled, as has the number of people taking ESOL courses. In that time, we have invested more than £3 billion in the national Skills for Life strategy, £1 billion of which has gone on ESOL programmes, thereby helping almost 2 million learners to improve their confidence as English-language speakers. As demand rises further, our aims are to ensure that public funding, which is obviously constrained, is targeted at those with the greatest need and to improve course availability for all those who need ESOL provision.
	As the noble Lord, Lord Greaves, rightly said, the demand for ESOL learning has never been greater because significant demographic changes have accompanied our sustained economic growth. Only last month, the Audit Commission published a detailed report, Crossing Borders, revealing the pace at which legal economic migrants have entered the UK intent on securing work and taking advantage of all that this country has to offer. The noble Baroness, Lady Verma, particularly stressed the pressure being brought in this area by people from the A8 accession states. She is right to highlight that issue, but I should stress that they account for less than 12 per cent of total ESOL demand, so it needs to be kept in proportion, but this is clearly an issue that we face.
	Migrant workers from the new EU member states make a significant and welcome contribution to our economy, but their demand for language skills has presented fresh challenges for ESOL providers. Rising demand for places on some courses is such that in London waiting times can be as long as two years, while elsewhere 18-month delays are not uncommon.
	Moreover, as a recent report by the National Institute of Adult Continuing Education acknowledged, we are still not reaching all the priority learners who face the greatest barriers to employability and social integration. Among our priority groups, for example, are the group mentioned by the noble Lord, Lord Greaves—Bangladeshi women, some of whom face tremendous obstacles, including the risk of abuse or being ostracised for venturing out of their homes to attend English classes. It is essential that FE colleges and other providers are encouraged to reach such groups as a top priority for government-funded courses within what is an inevitably constrained budget, despite the threefold increase that has taken place during the past six years.
	That is why, together with the Learning and Skills Council, we have reviewed ESOL arrangements for next year. Although we expect funding to continue at broadly the same level as this year, we have made two changes: first, removing eligibility for ESOL places from asylum seekers who will not have the opportunity to settle in the UK; and, secondly, removing universal fee remission irrespective of income.
	Let me take the two issues in turn. First, in respect of asylum seekers, about whom the noble Lord, Lord Avebury, spoke passionately, I have of course noted his views. As he knows, the change has been made in light of improvements to the time that the Home Office takes to resolve asylum claims. The great majority of initial decisions are now made within two months. With a high proportion of asylum seekers ineligible to remain in the UK, the Government believe that ESOL funding is rightly targeted at those learners either granted refugee status or already living in settled communities.
	The noble Lord raised the issue of those asylum seekers who are here for longer waiting for their claims to be determined. I can tell him—this deals with a number of other points raised—that we will shortly publish a race equality impact assessment of the effect of the changes, which follows a good deal of consultation with interested parties. We will consider issues raised by the assessment. I can tell the noble Lord that that will include the issue of those whose claims take longer to assess.
	In respect of the second change—the withdrawal of automatic fee remission from those who can afford to pay for ESOL courses—let me be frank. We see this as a hard choice but a justifiable one, given the pressures on the ESOL budget and the imperative to focus it on priority groups. On low-waged groups who may find it hard to demonstrate lower income under existing tests, again, I can say that we are considering the matter further in the light of the race equality impact assessment.
	However, we believe it reasonable to expect those individuals who can afford it to make a contribution to the cost of their learning. That should not be a prohibitive sum. The Government's contribution will remain substantial, covering 62.5 per cent of course fees. Those eligible for completely free courses will include the unemployed, the unwaged or the very low- paid, learners receiving jobseeker's allowance, those on an income-related benefit, or those who claim the higher rates of working tax credit. As I said, the contributions sought from learners—even those who are not in those priority groups—will be a maximum of 37.5 per cent in the next financial year. The noble Lord, Lord Greaves, asked whether the typical course fee for a four-hour-per-week course over 30 weeks would be about £300. I can tell him that that will be the case. Typically, it will be £300 for 120 guided learning hours, but I should stress that that means that the Government will continue to contribute substantially. For the same course, the Government will pay almost £900 as our contribution to the cost of the course.
	The noble Lord asked about the proportion of existing students who will continue to receive fee remission. We estimate that about 70 per cent of students will continue to receive full fee remission and therefore free ESOL courses. He asked about our estimate of the drop-out rate. I can tell him that the Learning and Skills Council does not anticipate that that will increase due to the changes because, as I said, 70 per cent will continue to get free ESOL courses and priority groups—those most in danger of dropping out—will be fully covered by the fee remission. Also, we do not expect class sizes to rise, not least because they are so large already, because demand is so great, that we do not expect that the providers would want to increase their size, even if they could.
	I state clearly that responsibilities in this area do not reside with the Government alone. Employers and recruitment agencies, many of which recruit in large numbers from overseas, have a responsibility to consider the language needs of prospective employees as part of their recruitment costs and planning. Noble Lords mentioned the report last week of the Commission on Integration and Cohesion. The report stressed the role that employers should be playing in ensuring effective ESOL tuition for their employees. Paragraph 37 states:
	"Respondents have also identified the key role that employers can play in providing English-language classes in the workplace, helping new staff to integrate and, in some cases, sharing data with other local partners about population change".
	Employers have clear responsibilities in this area, and I am glad to say that some companies have already developed their own training programmes for staff, which have proved to be highly cost-effective. For example, the bus company First Bus, which was the Skills for Life award winner last year, has already hired more than 1,100 drivers from eastern Europe. The company assesses their language skills and provides training before they arrive in the UK, which the report by the Commission on Integration and Cohesion also mentions. The investment by First Bus in this approach, which includes its own dedicated language school, stands at around £1 million. As a result, the turnover rate among its staff of drivers has dropped considerably.
	It is obviously right, however, that lower-income adults should receive priority for fully subsidised courses. As I have stressed, this will continue as of right. The Government appreciate that such training for these individuals is a lifeline, particularly for those who are out of work, as it prepares them to re-enter the job market with extra skills and increased self-confidence. In a survey conducted by the Department for Work and Pensions, a significant proportion of respondents from ethnic minority backgrounds cited poor language skills as a key impediment to employment.
	Furthermore, from April, Jobcentre Plus advisers have been instructed to raise the issue of language learning with any jobseekers who are clearly struggling to make themselves understood. Advisers will seek to agree a programme of action with these individuals so that any language problems are effectively addressed. In addition, we are developing, with the support of the Learning and Skills Council, a new £23 million basic skills and employability programme for Jobcentre Plus clients, which includes support for ESOL learners.
	We regard this issue as immensely important. I am sorry that I have not been able to respond to all the points that have been made, but I will correspond with noble Lords further to take up points that I have not been able to address tonight. I thank the noble Lord, Lord Greaves, for raising this important issue this evening.

Mental Health Bill [HL]

Further consideration of amendments on Report resumed.
	Clause 28 [Consent to treatment]:

Lord Hunt of Kings Heath: moved Amendment No. 55:
	Clause 28, page 21, line 17, leave out "after "58(3)(b) above"" and insert "before "a report on""

Lord Hunt of Kings Heath: My Lords, I shall also speak to Amendment No. 56. This is a technical amendment that rectifies an anomaly that the Bill would otherwise have created in respect of the duty of approved clinicians to report to the Mental Health Act Commission. Section 61(1) of the Act currently requires reports to be made to the commission when a patient's detention is renewed, if the patient has been treated without consent in the previous period of detention under a certificate given by a SOAD under Part 4 of the Act. Clause 28, as currently drafted, would have imposed that duty in respect of recalled community patients, even if a certificate was not needed for their treatment. It is not necessary to impose a requirement to report in those circumstances. To do so would be out of kilter with the requirements applying to detained patients, and would impose a small but unnecessary additional burden on clinicians and the Mental Health Act Commission. The amendment will ensure that Section 61 of the Act remains properly targeted on treatment authorised by SOADs appointed by the commission. I beg to move.

Lord Patel of Blackburn: My Lords, Amendments Nos. 56A and 58A relate to the authority for treating patients who are made subject to community treatment orders or returned to hospital under such an order. They would replace Clauses 28 and 29, which establish the Government's proposals on these matters. My main concern about those proposals is illustrated by the professional slang that has started to be used to refer to second-opinion appointed doctors—commonly known as SOADs—in the context of their proposed role in relation to community patients. The new term is "super-SOADs", from which we can infer that we are talking about a SOAD with special powers. The special powers in question are indeed remarkable, and include the ability to see into the future.
	Under the Bill, at some point during an initial period of at least one month, a community patient will receive a visit from a SOAD. The SOAD will examine the patient and authorise whatever treatment he or she thinks is appropriate at the time according to criteria set out in the Act, but he will also be able to anticipate and authorise the treatments to be imposed on the patient should he or she be recalled to hospital. This, I suggest, is where the Bill requires a SOAD to be not only a psychiatrist but also a person with paranormal powers.
	In short, it anticipates that a SOAD, whose role should be to safeguard against unnecessary or unsafe compulsory treatment, will authorise the forced application of medication in circumstances that he or she cannot foresee at some unpredictable point in the future. The SOAD can have no way of anticipating the circumstances whereby a community patient might be recalled to hospital or what physical or indeed mental condition that patient would be in upon such a recall. A patient who has developed dangerous and possibly irreversible side effects might have them worsened by the further imposition of medication on the authority of the SOAD. A patient with a heart condition might be killed by the imposition of medication authorised in good faith by the SOAD. Alternatively, the patient may have become pregnant, in which case some medications might be dangerous to her or her unborn child.
	The Minister may argue that I am ignoring the obvious fact that the responsible clinician or whoever is involved in actually giving the treatment to the recalled patient will of course have a duty of care and will not endanger their health or life recklessly in these ways. But if the only safeguard against a SOAD's authorisation being used recklessly in a context other than that in which it was given is the professional judgment of the treating doctor, or even nurse, we have negated the point of the SOAD role. It is important to preserve the role of the SOAD in considering what treatment should be given on the basis of the actual presentation of the patient at the time of their examination. This is the protection that SOADs can offer patients. The Minister may also argue that SOADs already authorise some treatments in advance of their being given, which of course is true, particularly with medication that is authorised on a 'PRN' or as-required basis; but they do so on the basis of the patient's presentation and situation at the time of their visit, having examined the patient and consulted two other members of staff who have professional involvement with the patient's care. The SOAD is not acting as if he or she can predict the future.
	I should make it clear that I have an interest as chairman of the Mental Health Act Commission, which is responsible for the administration of second opinions. One of the commission's roles is to appoint and train SOADs, and this means that it must provide advice on second-opinion procedure. The Mental Health Act Commission will be likely to advise SOADs to be extremely cautious when considering whether or not to authorise treatments to be given in an unforeseeable situation at an unidentified point in the future. Indeed, even putting the issue in this way makes me wonder whether the discretion that the Bill allows SOADs in this respect will actually be taken up by this body of responsible psychiatrists. I have to say that I hope it will not.
	The Bill's proposals for SOADs raise another ethical issue. According to the Bill and the draft code of practice, a SOAD who certifies that a community patient consents to treatment would also be enabled to certify what treatments can be imposed on the patient if he or she withdraws consent and is recalled to hospital. I realise that the possibility of coercion hangs over the heads of many psychiatric patients, but this truly is a sword of Damocles. At the very least it would appear to breach the principle underlying true consent as set out in the Mental Health Act code of practice, which at paragraph 15.13 states:
	"Permission given under any unfair or undue pressure is not 'consent'".
	This brings me to my alternative model, set out in these amendments. The key difference between my model and the Bill is that any certification of the treatment of a community patient cannot authorise treatment upon recall. This means that the forcible imposition of treatment to a recalled community patient would find authority only in the urgent treatment provisions set out in Section 62 unless and until a further second opinion is requested to consider treatment in the new context of detention.
	The amendment would not extend the three-month rule. Under the Bill, the requirement for a certificate authorising treatment takes effect only after the CTO has been in place for at least one month, and may be longer. A patient discharged to a CTO during his three-month period as an in-patient would have to wait until all of the unspent part of the three months had run its course before having the safeguard of a second opinion. Indeed, when an in-patient's three-month period is but a distant memory, if that patient is discharged on to a CTO he or she will be subject to a new one-month period where the safeguards over his or her treatment as an in-patient will be suspended. I think patients will perceive that to be simply unjust.
	My alternative proposal, where the three-month period still has some time left to run when the CTO is made, is to require certification no later than one month from the start of that order. Therefore, if the three-month period had expired within the first month, it would not be extended at all. If it were extended for more than one month from the start of the CTO, it would expire exactly one month from the start of that order. For in-patients whose three-month period has expired at the point when a community treatment order is made, I would require certification from the start of the order. Let us remember that drug treatment in the community is inherently less safe than such treatment under 24-hour medical care in hospital. We should be increasing the safeguards for community patients, not lessening them.
	To enable the certification from the start of CTOs, part of the preparation for discharging a patient on to a CTO would be for incapable patients to be visited by a SOAD, and for a capable patient to have a consent discussion with a clinician responsible for the treatment. It would be permissible to complete certificates prior to the patient's discharge that would only take effect once they become a community patient. There is a precedent for that in the fact that all detained patients who are currently coming to the end of their three-month period will have Section 58 certificates completed for them, with such certificates taking effect only when the period has actually expired.
	Such an approach seems to be both more of a safeguard for patients and more practical for the administration of the SOAD system. One of the great unknowns in the Government's proposals is how the second-opinion system might work with community-based patients. My proposals would allow for many SOAD visits in relation to the new powers to be undertaken before the patient ceases to be resident in hospital. At the very least, such a system would ensure that we knew where the patients were when they were due to be examined by a SOAD. I have some concerns that under the Government's proposals a great many clinicians would be faced with the dilemma of whether to recall a patient to hospital simply because they do not attend appointments to meet a SOAD.
	Nothing in my proposed arrangements contradicts my objections to SOADs anticipating patients recalling their authorisations. Certification, as a part of the discharge package, would of course take place where a patient's situation and mental or physical state were quite apparent to the certifying doctor.
	My amendment would reduce the complexity of the Bill; it uses the existing framework of Section 58 as its basis. We have heard from the Minister many times during our debates about the limitations of an amending Bill, and that we are not writing new mental health legislation from scratch. In that spirit, I offer this amendment on the basis that it makes only the most necessary changes to the current statute to set out the effects of community treatment orders under Part 4 of the 1983 Act.
	My amendments, in contrast to the Bill's provisions, would result in simpler and more practical arrangements for authorising treatment in these circumstances. Moreover, they would preserve the role of the SOAD, they would be safer for patients and more acceptable in ethical terms for the professionals who operate the Act. I hope the Minister will give them full consideration.

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Lord for allowing us to debate what is undoubtedly an important matter. However, the Government disagree with him.
	I shall explain. When a patient on supervised community treatment is recalled, it will be because he needs treatment in hospital to avert a risk to himself or others. He may have failed to comply with the medication authorised in the certificate, and it is simply the lack of compliance that engenders a risk. In that case, the treatment he needs would be the same as he has been receiving in the community. Alternatively, the patient's condition may have deteriorated to the point where some additional different treatment is needed to restore his stability. I am advised that it is possible to foresee the possibility that such deterioration might occur, and to determine what medication would be needed to deal with it. SOADs make that kind of assessment quite regularly when they authorise treatment to be given as required. That is simply the kind of judgment we are proposing clinicians might make when completing a Part 4A certificate.
	It is interesting to note that, under the Mental Health Care and Treatment (Scotland) Act, which we have discussed on a number of occasions, it is possible to authorise treatment given on recall, just as we propose. I understand that this has caused no particular problems.
	I should emphasise that a SOAD certificate provides an authority to administer medication. It is not a direction to do so. It remains for the treating clinician to decide whether it is right and proper to administer the treatment at any given time.
	The amendment which seeks to replace the Part 4A certificate is potentially detrimental to getting patients the treatment they need quickly on recall to hospital. If a patient is recalled to hospital and they do not consent to that treatment or do not have the capacity to object in some way, they cannot be treated with medication unless it is an emergency. Under this amendment, a responsible clinician would have to wait until a SOAD could be organised before he could treat the patient. This might cause an unnecessary delay of days. It could be a common scenario and could result in a worse deal for patients. Delays in treatment are not in the best interests of patients and may mean that a patient has to spend longer in hospital because they cannot be treated quickly and return home.
	We think the Bill achieves a pragmatic approach; it allows a patient to be treated quickly while benefiting from the safeguard of a second doctor review of that treatment. Recall to hospital is an event that everyone concerned will clearly hope to avoid, but it is available if needed, and it makes sense to plan for it. Planning in advance of the eventuality and setting out transparently what treatment could be given on recall is surely helpful to the patient and their family, with an opportunity for them to contribute to the decision.
	We have had a discussion about the length of time before which a SOAD must certify the medication of a patient under the Mental Health Act. As we have had that debate, I will not return to it in this context.

Baroness Barker: My Lords, before the Minister sits down, perhaps he will help me. Am I right in believing that the doctors who will be judging the effects of non-compliance with regard to medication are the same doctors whom the Government believe cannot predict the therapeutic benefit of a treatment for a patient? That is a problem for me. There is a hole in the Government's logic and expectations.

Lord Hunt of Kings Heath: My Lords, if there is a hole in the Government's logic, I guess there is one in the noble Baroness's logic, too. She is trying to argue it both ways. It is a different scale of order in relation to treatability more generally and to medication. This is a safeguard for patients.

On Question, amendment agreed to.

Lord Hunt of Kings Heath: moved Amendment No. 56:
	Clause 28 , page 21, line 17, leave out "or section 62A below," and insert ", or by virtue of section 62A below in accordance with a Part 4A certificate (within the meaning of that section),"
	On Question, amendment agreed to.

Baroness Hayman: My Lords, Amendment No. 56A has been discussed in the group with Amendment No. 55. It is up to the noble Lord, Lord Patel of Bradford, whether he chooses not to move it; but, as it is now in its correct place on the Order Paper, he is free to move it now if he wishes to debate it further.

Lord Patel of Bradford: had given notice of his intention to move Amendment No. 56A:
	Clause 28 , leave out Clause 28 and insert the following new Clause—
	"28 Authority to treat community patients
	(1) In section 58(3) of the 1983 Act, after "patient" insert "who is liable to be detained under this Act".
	(2) After section 58(3) of the 1983 Act, insert—
	"(3A) Subject to section 62A below, a community patient who has not been recalled to hospital shall not be given any form of treatment to which this section applies unless—
	(a) he has consented to that treatment and either the approved clinician in charge of that treatment or a registered medical practitioner appointed for the purposes of this Part of this Act has certified in writing that the patient is capable of understanding its nature, purpose and likely effect and has consented to it; or (b) a registered medical practitioner appointed as aforesaid (not being the approved clinician in charge of the treatment in question) has certified in writing that— (i) the patient is not capable of understanding the nature, purpose or likely effects of that treatment; (ii) he has either no reason to believe that the patient objects to being given the treatment, or he does have reason to believe that patient so objects, but it is not necessary to use force against the patient in order to give the treatment; (iii) he is satisfied that the treatment does not conflict with a valid and applicable advance decision, or a decision made by a donee or deputy or the Court of Protection; and (iv) having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given.
	(3B) Where a patient who has been liable to detention under this Act has been administered medication for a mental disorder to which this section applies for less than three months prior to becoming a community patient, the period mentioned in section 58(1)(b) above shall be read to extend for no longer than one month beginning with the day on which the community treatment order is made.
	(3C) The Secretary of State may by order vary the length of the period mentioned in subsection (3B) above.
	(3D) Certification under subsection (3A) above may take place whilst a patient remains liable to be detained, but will not come into force until the responsible clinician discharges the patient from detention in hospital under the terms of section 17A(1) above."
	(3) After section 58(4) of the 1983 Act insert—
	"(4A) Before giving a certificate under section 58(3A)(b) above, the registered medical practitioner shall consult two other persons, who have been professionally concerned with the patient's treatment, but of those persons—
	(a) at least one shall be a person who is not a registered medical practitioner; and (b) neither shall be the patient's responsible clinician or the approved clinician in charge of the treatment in question."
	(4) In section 61 of the 1983 Act (review of treatment)—
	(a) in subsection (1) for "or 58(3)(b)" substitute ", 58(3)(b) or 58(3A)(b)"; (b) in subsection (1)(a) after "20(3)" insert "20A(4)"; (c) in subsection (3) for "responsible medical officer" substitute "approved clinician in charge of the treatment in question"; (d) in subsection (3), for "or 58(3)(b)" substitute ", 58(3)(b) or 58(3A)(b)".
	(5) In section 64 of the 1983 Act (supplementary provisions for Part IV), after subsection (2) insert—
	"(3) In this Part of this Act, references to "not capable of understanding the nature, purpose and likely effects of treatment" are to be read in accordance with the test established at section 3 of the Mental Capacity Act 2005.
	(4) References to a donee are to a donee of a lasting power of attorney (within the meaning of section 9 of the Mental Capacity Act 2005) created by the patient, where the donee is acting within the scope of his authority and in accordance with that Act.
	(5) References to a deputy are to a deputy appointed for the patient by the Court of Protection under section 16 of the Mental Capacity Act 2005, where the deputy is acting within the scope of his authority and in accordance with that Act.
	(6) Reference to the responsible clinician shall be construed as a reference to the responsible clinician within the meaning of Part 2 of this Act.
	(7) References to a hospital include a registered establishment."
	(6) In section 119 of the 1983 Act (practitioners approved for Part 4 and section 118)—
	(a) in subsection (2)(a) leave out "in a registered establishment" and insert "in a hospital or registered establishment or any community patient in a hospital or establishment of any description or (if access is granted) other place"; (b) in subsection (2)(b) leave out "in that home" and insert "there"; (c) after subsection (2) insert— "(3) In this section, "establishment of any description" shall be construed in accordance with section 4(8) of the Care Standards Act 2000."
	(7) In section 28 (Mental Health Act matters) of the Mental Capacity Act 2005 (c. 9), after subsection (1) insert—
	"(1A) Section 5 does not apply to an act to which section 58(3A) of the Mental Health Act applies.""

Lord Patel of Bradford: My Lords, I do not wish to debate this amendment further, except to make some closing remarks. I am obviously disappointed by the Minister's reply. It is doubtful whether any thoughtful clinician, especially when undertaking the role of a SOAD, would take advantage of the scope of powers presented to him or her under the Government's proposals. I urge the Minister to set aside the question of whether professionals should be able prospectively to authorise treatment on a patient recalled to hospital and consider the relative merits of the proposed models in terms of patient protection and practicability of administration.
	I hope that the Minister will think again and be willing to discuss this further with me and other noble Lords, perhaps bringing forward some appropriate amendments at Third Reading. I hope that this matter is raised again during the Bill's proceedings here or in another place.

[Amendment No. 56A not moved.]

Lord Williamson of Horton: moved Amendment No. 57:
	After Clause 28 , insert the following new Clause—
	"Assessment of need for health and social care services
	After section 1 of the 1983 Act, insert the following Part—
	"PART 1A Assessment of needs for health and social care services
	1A Assessment of needs for health and social care services
	(1) Where—
	(a) it appears to a local authority or a health authority that any person with a mental disorder for whom they may provide or arrange for the provision of community care services may be in need of any such services; or (b) it appears to a health authority that any person with a mental disorder may be in need of services which are commissioned by the health authority in respect of mentally disordered persons,
	the authority and the health authority shall carry out a joint assessment of his needs for those services; and having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services.
	(2) Where a local authority or health authority receive a request for an assessment under subsection (1) above in writing by—
	(a) the person with mental disorder; (b) the carer (as defined under section 1 of the Carers and Disabled Children Act 2000); (c) the person who is or who will be the nearest relative; or (d) an approved mental health professional,
	the authorities must comply with subsection (3) below.
	(3) The requirement referred to in subsection (2) above is to give notice, before the expiry of the period of 14 days beginning with the day on which the request is received, to the person who made the request or whether the health authority and local authority intends to undertake the assessment; and if the intention is not to undertake the assessment, of the reason why that is the case.""

Lord Williamson of Horton: My Lords, this amendment, which relates to the assessment of need for health and social care services, derives from the mental health organisation, Rethink, of which I have been for a long time a supporter. Without prejudice to the question of whether this should be in the Bill, which is a key point, it is rather bizarre not to have an assessment of the need for services of a person with a mental disorder. Without it, how can the right decision on services be made? The logic of this amendment seems quite irrefutable.
	I want to make three points only. First, this amendment covers local authorities and health authorities, which is an innovation; I do not think that it is in current legislation. The health authority should in our view also be covered. Secondly, this assessment could be a request from a number of people: the person himself; the carer—that is a very important point in public opinion—the nearest relative; or a mental health professional. Thirdly, this assessment is not an absolute requirement. It is clear from the text that the authorities can decide not to make an assessment, but if they do that they have to give reasons. It is a logical sequence.
	I leave it to the Minister to say whether it should be in the Bill, but I hope that he will indicate that it seems reasonable as far as possible for local authorities and health authorities to make an assessment, which it should be open to a number of people to suggest. There should also be a clause to say that an assessment does not necessarily have to be made in every case. I beg to move.

Baroness Meacher: My Lords, needless to say, I will speak extremely briefly. This amendment seeks to deal with the prejudice against those with mental health problems which is reflected throughout the NHS. If we look at NHS budgets, I believe it is true to say that some 30 per cent of patients suffer with mental health problems, but only 13 per cent of the NHS budget is devoted to people with those problems. It is argued that physical treatments cost a great deal more than mental health treatments, but that situation is very far from straightforward. A complex care bed in a psychiatric hospital, particularly in the private sector, can cost £250,000 a year. Of course, some people remain for that time or a good deal longer. A bed in an intensive care ward can cost £90,000 a year. How many physically ill patients have treatment regimes that cost anything like that amount?
	The principal argument behind this amendment has been that a quarter of people seeking assessment and help with their mental health problems are turned away. The likelihood is that a good proportion of those people will finish up needing these very expensive in-patient psychiatric admissions. The reality is that within the mental health budget, funding is heavily focused on those services directly affected by the Mental Health Act—for example, special hospitals, medium secure units and intensive care units where detained patients tend to be looked after.
	If someone really wants mental health services, believe me, they need to have a thorough-going psychiatric breakdown and get themselves detained under the Act. If you do not do that, you have not got much chance of anything like adequate care and treatment. I really do not believe that the Government want to be responsible for a service with that extreme imbalance in the allocation of resources. This amendment would over time encourage more resources to be focused on prevention. This would support the Government's welfare reform strategy, of which the Minister is much more aware than probably any of the rest of us. Early assessment and evidence-based therapy would prevent people losing their jobs and help others back to work. This amendment would thus also help to fulfil the Government's social inclusion agenda—all sorts of government agendas are being talked about in this very short debate.
	I am sure that none of us supporting this amendment wants a section in the Act which would leave the Government open to endless litigation. This amendment avoids that problem and keeps the House within its legitimate boundaries by not requiring additional resources, so long as reasons are given for an inability to respond to a request. The aim would be, through increased awareness of need as a result of an assessment being done, that appropriate treatment would in time become available.
	I hope that the Minister will give us some assurance that a way forward can be found to ensure that people suffering crippling mental health symptoms can be assured of an assessment, exactly as any patient with comparable physical symptoms could take for granted.

Lord Hunt of Kings Heath: My Lords, this has been a short but important debate. The argument between us, if it is such, is that we believe that there are sufficient existing duties providing for the assessment of patients and the provision of services in legislative provision at the moment, which makes the amendment unnecessary. However, I fully accept that noble Lords have raised issues in relation to the provision of adequate assessment, which deserves every consideration.
	The Government readily acknowledge that the issues that they have raised are real and that there are people who experience issues in accessing assessment and services. Noble Lords gave examples of problems in Committee and at this stage. Because we believe that existing statutory duties cover the point, the issue is how to ensure that statutory services ensure that the kind of problems that they have raised do not occur in practice. We have to build on the progress that we have made in recent years. The national service framework has laid the foundation for the kind of service that we want in mental health care. We have seen many more resources put in, with more people employed, and services such as assertive outreach, which we have discussed in the context of supervised community treatment. One hundred and nine early intervention teams have been formed, as well as 343 crisis intervention teams and 262 outreach teams.
	I am not at all complacent. I realise that there is more to do and that, if the noble Baroness is right and there is no level playing field in practice between physical and mental services, we need to ensure that in statute there is a level playing field. The issue is how to ensure that there is one with regard to services on the ground. I am afraid—because I know that noble Lords may find this answer tedious—that we will not achieve that through legislation. We have to achieve it through determination to continue improvements to ensure that people do not slip through the net and that when assessment and services are needed they are provided. But there is no moving away from the hard graft that needs to be done on the ground to ensure that that happens.

Lord Williamson of Horton: My Lords, I thank the Minister for his reply. The issue is important and I am strengthened by the convincing arguments presented by my noble friend Lady Meacher, which I thought were very much to the point. I am grateful for the Minister's acknowledgement of the importance of the issue and his determination to build on the progress that we have already made. Since he has promised us hard graft, I shall look to him for hard graft in future. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 29 [Authority to treat]:

Lord Hunt of Kings Heath: moved Amendment No. 58:
	Clause 29 , page 22, line 22, leave out "treatment falling within section 57 above" and insert "a form of treatment to which section 57 or 58A above applies"
	On Question, amendment agreed to.
	[Amendment No. 58A not moved.]
	Clause 30 [Repeal of provisions for after-care under supervision]:

Earl Howe: moved Amendment No. 59:
	Clause 30 , leave out Clause 30
	On Question, amendment agreed to.

Earl Howe: moved Amendment No. 60:
	After Clause 31, insert the following new Clause—
	"Referral to Secretary of State by hospital manager
	After section 67 of the 1983 Act insert—
	"67A Referral to Secretary of State by hospital manager
	(1) Where a patient who is admitted to hospital in pursuance of an application for admission does not exercise his right to apply to the Mental Health Review Tribunal under section 66(1) above, the managers of the hospital shall, before the expiration of the period for making such application, consider whether—
	(a) the patient lacks capacity to decide whether to make such an application; and (b) there is any good reason why such an application should not be made.
	(2) In considering whether there is any good reason why an application under subsection (1) above should not be made, the hospital manager shall have regard to the wishes and feelings of the patient so far as they can be ascertained.
	(3) Where the hospital manager reasonably believes that the patient lacks capacity and that there is no good reason why an application under subsection (1) above should not be made, he shall refer the patient's case to the Secretary of State in order that he may consider whether to exercise his power under section 67 to refer the case of the patient to the Mental Health Review Tribunal.""

Earl Howe: My Lords, the Minister will remember that in Committee I tabled a very similar amendment to this one. The point at issue is whether there should be an extra degree of protection in the Act for those mental health patients who lack capacity and who therefore do not exercise their right to appeal to the mental health review tribunal.
	Every year there are about 45,000 detentions under Sections 2 and 3 of the Mental Health Act, which are the sections that enable a patient to make an immediate application to the mental health review tribunal. Yet it is extremely unlikely that any but a small minority of patients so detained have the capacity to make a tribunal application. For example, some of these patients will have learning difficulties that will have prevented them from understanding the nature and purpose of the tribunal. Others, by reason of their mental illness, will not have the capacity to apply for a tribunal because their depressive symptoms make them feel that there is no point in applying, or their delusional symptoms make them suspicious of the tribunal's motives.
	Just taking Section 2 detentions, we know that in 2004-05 Section 2 was used more than 21,000 times and there were just over 6,000 tribunal applications. Therefore, about 15,000 people detained under Section 2 did not apply for a tribunal. We cannot tell how many of those 15,000 lacked the mental ability or legal capacity to take a decision on whether to apply, but even if only 10 per cent fell into that category—and that has to be a modest assumption—1,500 referrals still could have taken place, and almost certainly should have taken place, but did not. Hospital managers have a legal duty to ensure that suitable cases, where patients lack capacity, are referred to the tribunal. It is clear that many are not properly complying with that obligation. That is a very serious situation.
	When I raised this issue in Committee, the Minister said that she understood the point at issue, but she rejected the amendment on several grounds. In the first place, she reminded us that Section 68 already places a duty on hospital managers to refer a case to a tribunal where no application has been made in the first six months. Following this, adult patients are referred every three years, and children every year. She also pointed out that the Bill introduces the option to reduce these periods when resources allow. Her fear was that the amendment would lead to an immediate increase in tribunal referrals which may or may not be wanted by the patients concerned, and that it would force managers to assess capacity indiscriminately.
	The Minister will see that I have changed the amendment so as to place a duty on hospital managers to make appropriate referrals not to the tribunal direct but to the Secretary of State, who can exercise her power under Section 67 to refer the case to the tribunal. I say to her that this formulation is not designed to change the law; it is designed to help NHS trusts not to fall foul of the law. The case of R(MH) v Secretary of State (2004) clearly showed that hospital managers have a duty to refer appropriate cases to the Secretary of State with a request that it be referred to the tribunal. The noble and learned Baroness, Lady Hale, concluded the case by saying that,
	"every sensible effort should be made to enable the patient to exercise that right",
	to appeal to the MHRT,
	"if there is reason to think that she would wish to do so".
	The duty under Section 68 to refer all cases for a tribunal hearing where no application has been made after six months really is not a sufficient safeguard for this particular group of vulnerable patients. That certainly is the conclusion one can legitimately draw from the judgment in the MH case. Yes, it is indeed likely that the amendment may lead to an increase in tribunal hearings. But why is that? It is because these patients are currently being denied access to the tribunal. That hardly places the Minister's position on the moral high ground.
	I agree with the Minister that hospital managers in general have no system to identify those detained patients who are incapable of applying to a tribunal; that is true. But the result of that is that many people are being denied the right to have their cases heard by a mental health review tribunal. There has been absolutely no guidance on this point from the Department of Health.
	It would be very good if the Minister were able to take this problem on board and think about how it might be put right if an amendment such as this is not acceptable to her. I beg to move.

Baroness Ashton of Upholland: My Lords, I am very grateful to the noble Earl for introducing his amendment. My background briefing says that this is a very clever amendment, so I pay tribute to him for that. I, too, was struck by what the noble and learned Baroness, Lady Hale, said in responding to this. The critical part of what she said was about being practical and effective in what we did in terms of the amendment. I thought very carefully about the issue that the noble Earl has rightly raised. I reiterate what I said in Committee: I have no difficulty with the principle behind what the noble Earl is seeking to achieve; the discussion between us is how we get there.
	There is a difficulty in placing this in the Bill, because we run into two possible problems. One is the inflexibility that primary legislation can offer us sometimes, which could be a difficulty. Secondly, I hope that the amendment is unnecessary, for two reasons. First, in the draft code of practice we have been very clear. It states:
	"If the patient's case has not already been considered by the MHRT—or a significant period has passed since that hearing—Hospital Managers should consider making a request as soon as the detention is extended. A failure to do so could result in a breach of the patient's rights under the Human Rights Act 1998".
	That raises my second point, which is that under either the ECHR or the Human Rights Act we have very clear guidance and understanding in the public bodies that they have a right and a duty to comply with the Human Rights Act.
	I am happy to commit to look again at the code of practice to see whether we can strengthen this aspect of it to address the reasonable concerns expressed by the noble Earl to make sure that this actually happens when it should happen. I hope that in so doing, although I am not committing to putting this in the Bill, I will be able to demonstrate as the Bill passes to another place that I have addressed the concern that is reasonably raised in the amendment. To do so would make sure that the combination of ECHR/Human Rights Act compliance and the requirements under the code of practice addresses the concerns that the noble Earl raises. On that basis, I hope that he is able to withdraw his amendment.

Earl Howe: My Lords, I am very grateful to the Minister for that helpful and positive reply, and I accept her offer with gratitude. I am grateful to her for giving such serious thought to the proposals that I put forward. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 33 [Cross-border arrangements]:

Lord Hunt of Kings Heath: moved Amendment No. 61:
	Clause 33, page 32, line 40, at beginning insert—
	"(1) At the end of section 17 of the 1983 Act (leave of absence) insert—
	"(6) Subsection (7) below applies to a person who is granted leave by or by virtue of a provision—
	(a) in force in Scotland, Northern Ireland, any of the Channel Islands or the Isle of Man; and (b) corresponding to subsection (1) above.
	(7) For the purpose of giving effect to a direction or condition imposed by virtue of a provision corresponding to subsection (3) above, the person may be conveyed to a place in, or kept in custody or detained at a place of safety in, England and Wales by a person authorised in that behalf by the direction or condition."
	(2) "
	On Question, amendment agreed to.
	Schedule 5 [Cross-border arrangements]:

Lord Hunt of Kings Heath: moved Amendments Nos. 62 to 66:
	Schedule 5, page 70, line 21, leave out "Scotland or"
	Schedule 5, page 70, line 26, leave out from beginning to "an" in line 27
	Schedule 5, page 70, line 29, leave out "words "to Scotland or Northern Ireland"" and insert "following—
	(a) the words "to Scotland or Northern Ireland", (b) paragraph (a), and (c) in paragraph (b), the words "in Northern Ireland,"
	Schedule 5, page 72, line 9, at end insert—
	"19A (1) In section 146 (application to Scotland), omit the words from "88" to "138)".
	(2) This paragraph does not extend to Scotland."
	Schedule 5, page 72, line 19, leave out "after "section" insert "289,"" and insert "for "290" substitute "289, 290, 309, 309A""
	On Question, amendments agreed to.

Lord Hunt of Kings Heath: moved Amendment No. 67:
	Before Clause 36, insert the following new Clause—
	"Informal admission of patients aged 16 or 17
	In section 131 of the 1983 Act (informal admission of patients), for subsection (2) substitute—
	"(2) Subsections (3) and (4) below apply in the case of a patient aged 16 or 17 years who has capacity to consent to the making of such arrangements as are mentioned in subsection (1) above.
	(3) If the patient consents to the making of the arrangements, they may be made, carried out and determined on the basis of that consent even though there are one or more persons who have parental responsibility for him.
	(4) If the patient does not consent to the making of the arrangements, they may not be made, carried out or determined on the basis of the consent of a person who has parental responsibility for him.
	(5) In this section—
	(a) the reference to a patient who has capacity is to be read in accordance with the Mental Capacity Act 2005; and (b) "parental responsibility" has the same meaning as in the Children Act 1989.""

Lord Hunt of Kings Heath: My Lords, in my response to the amendment on consent to treatment for 16 and 17 year-olds, tabled by the noble Earl, Lord Howe, I said that in view of what I had heard in Committee I would take it back and see whether the Government should table an amendment in this area. Amendments Nos. 67 and 94 are the result of the Government's deliberations.
	The amendments clarify the position of 16 and 17 year-olds who require treatment for mental disorder being admitted informally. Section 131(2) of the Mental Health Act 1983 at present provides that a 16 or 17 year-old who is capable of expressing his wishes may consent to being admitted even though there are persons with parental responsibility for him. The intention of the amendment is to make it clear that a 16 or 17 year-old may decide whether to be admitted, regardless of the fact that there is a person with parental responsibility for him. That builds on the approach taken in Section 131(2) of the 1983 Act and is consistent with the age range dealt with in the Family Law Reform Act 1969, which in Section 8 deals with consent by persons over 16 to surgical, medical and dental treatment. It is also consistent with the approach taken in the Mental Capacity Act 2005, which in general applies only to people of 16 years and over.
	The amendment amends Section 131, so that patients aged 16 or 17 who have the capacity to consent to their admittance to a hospital or registered establishment for treatment for mental disorder can consent or not consent to such arrangements. If the patient consents to the making of arrangements, they can be informally admitted to hospital, and their consent cannot be over-ridden by a person with parental responsibility for them. If the patient does not consent to the making of the arrangements, they cannot be informally admitted on the basis of consent from a person with parental responsibility for them.
	Practitioners must, of course, satisfy themselves that, where the patient appears to be consenting, he understands what he is consenting to and the consequences of that consent. Where the practitioner is not content that the consent is sound, they may not use the consent of a person with parental responsibility. The patient can be admitted to hospital for treatment under the Mental Health Act 1983 if they meet the relevant criteria. There is also, of course, the possibility of applying to the court for authority, but we would not expect that route to be used often where there is the statutory alternative of the Mental Health Act.
	The repeal of a sub-paragraph in a schedule to the Children Act is pure housekeeping. The sub-paragraph inserted new text into the current Section 131(2) of the 1983 Act and requires repeal. The other amendment in my name in this group replaces that text.
	In conclusion, I thought that the debate in Committee was very good. I was convinced by the arguments and have, therefore, brought forward these amendments. I beg to move.

Earl Howe: My Lords, perhaps I may say how very much I welcome the amendment tabled by the Government, which undoubtedly goes a long way to address some of the concerns voiced in Committee about consent to treatment for minors.
	Unfortunately, and at the risk of appearing to be a latter-day Oliver Twist asking for more, I wonder whether the amendment goes far enough. It could be said that it sets up an anomaly. If the amendment is made to the Bill in the form in which it has been tabled, the rights of a 16 or 17 year-old are protected, but those of a Gillick-competent child are not. That discrepancy is unsatisfactory and potentially confusing. Amendment No. 71, which stands in my name and that of other noble Lords, would provide an explicit statutory provision that those with parental responsibility could not over-ride the competent refusal of a child or young person for treatment for a mental disorder.
	Perhaps I could briefly set out why this is an issue. It has commonly been accepted that the refusal of a Gillick-competent child or a mentally capable 16 or 17 year-old to accept medical treatment can be over-ridden by a person with parental responsibility for that child or young person. That principle was established in a 1992 case, In Re W. In the area of mental health, this led to uncertainty: should a professional rely on parental consent in the face of the child or young person refusing, or should he use the powers of compulsion under the Mental Health Act 1983? That uncertainty typically causes delay in making appropriate arrangements for the child or young person, which is highly unsatisfactory.
	The Department of Health initially cited case law as giving greater autonomy to children and young people; the Minister referred to that in Committee. However, the case law in question, the Axon case, is not conclusive. It relates to the duty of confidentiality. It considered how medical professionals should deal with young people who are Gillick competent and want advice on sexual matters but who cannot be persuaded to inform their parents or to permit the medical professionals to inform their parents. It does not, therefore, address the issue of a competent child's refusal of medical treatment. Indeed, the case of In Re W is not mentioned in Axon.
	In Committee, the Minister referred to changes to the code of practice. In fact, the draft illustrative code of practice removes references to the refusal of a Gillick-competent child or a capable 16 or 17 year-old being over-ridden by a person with parental responsibility. However, it cites no case law to support that view, nor is there any explanation for the change in approach.
	There is confusion here. The department's 2001 guidance, Reference Guide to Consent for Examination or Treatment, refers to parental consent over-riding the refusal of a competent child or young person and suggests that this power should be used only rarely. But the guidance then states that,
	"no definitive guidance has been given as to when it is appropriate to over-rule a competent young person's refusal".
	So the cause for concern is not simply that there is a need for guidance in the form of a code of practice, or whatever, to resolve the confusion among practitioners; the amendment is needed because the current law is unclear. I believe that it can be made unambiguous only by including a provision on the face of the Bill. I hope that the Minister will agree to look at this issue very carefully.

Baroness Walmsley: My Lords, I support the noble Earl, Lord Howe, and thank the Minister for his letter to me explaining the position that he took at that time and for his change of heart. We very much welcome the amendment, although it does not quite go far enough. The concept of the Gillick-competent child is quite well understood. It works very well in relation to sexual advice. If you were dealing with a large number of children—in a school, for example—it might be practically difficult to use the concept of a Gillick-competent child in making decisions. The cases we are talking about involve individual children whom the professionals have had every opportunity to get to know and to assess whether they are competent to make the decision. In that situation, I suggest to the Minister that, practically speaking, it is very reasonable to ask the Government to include not just 16 and 17 year-olds but also those children who can demonstrate their competence to decide on these matters.

Lord Hunt of Kings Heath: My Lords, I am grateful for the noble Baroness's helpful comments. This is clearly a complex area.
	I begin by saying that I should be very happy to institute discussions between now and further stages of the Bill. I give no commitment but it is important that there is an opportunity to discuss a complex area. I am happy to accept the invitation that noble Lords have given to enable that to happen.
	The Family Law Reform Act provided that 16 should be the age at which the consent to treatment should be treated as though that person were an adult and the consent of a person with parental responsibility should not be required. The Mental Capacity Act, as I have already said, also provided that in general none of the measures in it would apply to persons under 16. The position of under-16s is more complex; there is likely to be far more variation. That is why our initial thinking is that guidance is able to go into much greater detail in this difficult area. That is our preference.
	Where the child is Gillick-competent—that is, it is deemed that they understand what they are consenting to and the consequences of that consent—and the child consents, the draft code plainly says that he can be admitted informally on that basis. I reiterate for the noble Earl, Lord Howe, that that is very much a draft code and is work in progress. Comments made during the passage of this Bill will undoubtedly be fed into the code. Where a Gillick-competent child refuses, our guidance will state that it would be unwise to rely on the consent of a person with parental responsibility, and to detain a Gillick-competent child against his wishes might be in breach of Article 5 of the ECHR. The code will suggest that detention under the Mental Health Act should be considered, although again there is the possibility of an application to the court. But, for under-16s, every case will be different and depend on the specific facts of that case. That is why we think that it is right to leave under-16s to the code.
	This is a developing area of law; that is why we think it better to put this guidance in the code. I accept what the noble Earl said about clarity in the law but the problem with the amendment is that it requires children to be treated as adults as a blanket rule; we think that for those under 16 every case will need to be looked at individually and had regard to a range of factors that will be explained in the guidance. For example, where the child is not Gillick-competent to make such a decision, if the decision falls within the zone of parental responsibility, a person with parental responsibility will be able to give consent and the child can be admitted informally on the basis of that consent. Guidance as to what is within what is known as the zone of parental responsibility will be given in the code. Again, this is a developing area, and we think it more helpful to give detailed advice in the code, which can be updated from time to time. It is, however, basically about the kind of decisions that our society thinks it proper for a person with parental responsibility to be able to take.
	Where the child is not Gillick-competent and either it is not considered that the child could be admitted informally on the basis of the consent of a person with parental responsibility, or no person with parental responsibility is prepared to consent, consideration should be given to the use of compulsion or, occasionally, an application to the court. As I said, the Family Law Reform Act sets 16 as the benchmark for a young person to give consent to treatment as though he were an adult. We think that our approach is in line with that. I should be happy to enable further discussions to take place on this important matter but our default position is that, because of the complexity, we think that the code of practice is the best place to deal with it.

On Question, amendment agreed to.

Lord Hunt of Kings Heath: moved Amendment No. 68:
	Before Clause 36, insert the following new Clause—
	"Places of safety
	(1) The 1983 Act is amended as follows.
	(2) In section 135 (warrant to search for and remove patients), after subsection (3) insert—
	"(3A) A constable, an approved mental health professional or a person authorised by either of them for the purposes of this subsection may, before the end of the period of 72 hours mentioned in subsection (3) above, take a person detained in a place of safety under that subsection to one or more other places of safety.
	(3B) A person taken to a place of safety under subsection (3A) above may be detained there for a period ending no later than the end of the period of 72 hours mentioned in subsection (3) above."
	(3) In section 136 (mentally disordered persons found in public places), after subsection (2) insert—
	"(3) A constable, an approved mental health professional or a person authorised by either of them for the purposes of this subsection may, before the end of the period of 72 hours mentioned in subsection (2) above, take a person detained in a place of safety under that subsection to one or more other places of safety.
	(4) A person taken to a place of a safety under subsection (3) above may be detained there for a purpose mentioned in subsection (2) above for a period ending no later than the end of the period of 72 hours mentioned in that subsection.""

Lord Hunt of Kings Heath: My Lords, I beg to move formally.

Baroness Gould of Potternewton: My Lords, I do not think that the noble Lord has spoken to this amendment.

Lord Hunt of Kings Heath: My Lords, I apologise to the House. I am not used to moving amendments at the start of a group. No wonder the noble Lord, Lord Patel, and I got mixed up last time.
	It may be helpful if I speak briefly to my amendment. The noble Earl, Lord Howe, and the noble Baroness, Lady Neuberger, may then like to speak to their amendment and I shall respond to that.
	Amendment No. 68 is a response to some of the concerns raised in Committee. It would enable a person detained at a place of safety under either Sections 135 or 136 of the Act to be moved from one place of safety to another. I beg to move.

Earl Howe: My Lords, I am extremely grateful to the Minister for having tabled the government amendment. It is most welcome and responds to the concerns expressed from around the Chamber in Committee that the law as it stands is inappropriately rigid. A permissive power to move a mentally disordered person from a police cell to another place of safety without necessarily waiting for 72 hours to elapse is a sensible and humane provision. However, perhaps I may bring us back to our Committee debates. I confess to a measure of disappointment that the Government have not felt able to pick up some of the other concerns that I and others raised on that occasion. The amendment in my name grouped here is designed to go somewhat further than Amendment No. 68.
	Everyone agrees that a police cell is not a therapeutic environment for someone who may have reached a mental crisis point and may even be suicidal. It is simply, if you like, an expediency. I do not propose to repeat everything that I said in Committee, but putting someone in a police cell when they are in an excited or depressed state of mind is neither good for the person nor fair on the police. We have to recognise that police cells should be available as a last resort, but that is not what the Act says. It places police cells on an equal footing with other places of safety as though all had equal validity. Amendment No. 69A therefore says that a police cell should be used only if it is impracticable to use a therapeutic environment. It also proposes that the period of 72 hours allowed for in the Act for someone with mental health problems to be detained by the police is too long and that it should be reduced to 24 hours.
	I still think that the case for making this change is extremely strong, and it is supported fully by the Police Federation and the Independent Police Complaints Commission. In fact, new research from the IPCC shows that the average amount of time that those detained under Section 136 are held in custody is 10 hours. The vast majority of detainees—95 per cent, in fact—leave police custody after 18 hours. That suggests very strongly that making an amendment to the Act to reduce the maximum period of police custody to 24 hours would not represent an unduly onerous requirement. Indeed, it is fair to say that it is only the absence of suitably trained specialist staff to carry out assessments that prevents police in some areas of the country discharging mentally disordered detainees even more quickly. With that thought in mind, the amendment would also put in the Act a duty to ensure that, where someone is detained in a cell, he must be assessed by mental health professionals or transferred to a psychiatric hospital within the shortest possible time.
	I realise that the Minister is unlikely to warm to the amendment or at least to the parts of it that do not chime in with Amendment No. 68. In view of the widespread concerns expressed on these issues, both from the police and the mental health community, I ask him whether he will agree once more to take these various points away with him and give them further thought. If he cannot agree to the amendment, it would be extremely welcome if the Minister were able to give a commitment to monitor the use of police cells as places of safety and publish the figures regularly. At least that would help to establish the extent of the problem and the particular areas in which police cells are over-used. At the moment, there are no official national statistics or monitoring of the use of police stations as places of safety.
	I understand that the Police Federation does not believe that that would be an unnecessary administrative burden. Most police authorities already have a computer system that allows them to log in when a patient is brought in under Section 136. However, according to the IPCC research, currently there are wide variations in the way in which that data are recorded, which makes it difficult to establish accurate numbers of people detained in police cells.

Lord Hunt of Kings Heath: My Lords, I seem to be forever destined to disappoint the noble Earl, Lord Howe, even when I bring forward government amendments in response to issues that he raised at previous stages of the Bill. Of course, I recognise that there is a great deal of concern about the use of police cells for the detention of mentally ill people. As I said in Committee, I accept that a police station is not an ideal place in which to detain such a person. I also accept that 72 hours may seem to some people to be a long time. It should be borne in mind that that is an upper limit. Recently published emerging evidence from a study being undertaken by the Independent Police Complaints Commission suggests that the average amount of time in police custody under Section 136 is 10 hours and that the majority of detainees leave police custody within 18 hours. That is reassuring, although from this evidence it is clear that some people need to be detained for longer than 24 hours.
	I well understand why the noble Earl has returned to this matter, but there are some issues of practicality. For example, in the case of a person removed from a public place, it would require the police and local agencies to try to identify an appropriate place of safety other than a police station. If none is available, it would be necessary to convey the person to a police station and to arrange for the person to be examined and interviewed urgently at the police station. If that is not possible, it would be necessary to transfer him to another place of safety and to arrange for him to be interviewed and examined there.
	It may not be possible to do all that within 24 hours. As I said in Committee, I do not think that imposing statutory restrictions is the way to address the concerns of the noble Earl. The right way forward is to try to limit the use of police stations by facilitating good practice. The Government are allocating a considerable amount of money to the NHS in England to improve the NHS estate and £130 million is being made available this year and next year. That money will help to facilitate an increase in hospital-based places of safety and improvement in existing facilities. Therefore, it will help to reduce reliance on police stations.
	I also re-emphasise that we are planning to reinforce our approach to encouraging good practice by strengthening the guidance in the new code of practice for England along the lines of the noble Earl's amendment. The current code states that police stations should not generally be used. In the revised version of the code, we intend to stress that police stations should be used only as a last resort; for example, only if nowhere more suitable is immediately available and even then only if such use is compatible with local agreements on the use of places of safety. We also intend to stress in the revised code that assessment should be completed as soon as possible. Of course, we shall consult widely on that. I understand that similar arrangements will be made for the code of practice in Wales.
	There is clearly more that we can do. The amendments that I have tabled also deal with an issue that was raised in Committee—a very good issue—and we now amend the Bill so that patients can be moved from one place of safety to another. Clearly, it is not appropriate for vulnerable, mentally ill people to have to remain at, say, a police station, so that a doctor and an approved mental health professional can assess and interview when a more suitable setting is available.
	On monitoring and the views of the Police Federation, my right honourable friend Mrs Rosie Winterton, the Minister responsible, recently met with representatives of the federation. There was a good, useful and constructive discussion. We are not convinced that there is a need to require the Home Secretary to monitor and report on the use of police stations as a place of safety. However, I shall take the more general issue of monitoring back to see what can be done. As the noble Earl will know, we intend to create a new single regulator in England to replace the Mental Health Act Commission, the Healthcare Commission and the Commission for Social Care Inspection. We will want to look at monitoring responsibility. In that context, I certainly undertake to look at the issues that the noble Earl has raised.

Earl Howe: My Lords, before the Minister sits down, I should say that I am by no means unappreciative of the government amendment. Nor am I unappreciative of the proposal he just kindly just made, which I welcome.

On Question, amendment agreed to.
	[Amendment No. 69 had been withdrawn from the Marshalled List.]
	[Amendment No. 69A not moved.]

Baroness Murphy: moved Amendment No. 70:
	Before Clause 36, insert the following new Clause—
	"Offence of ill-treatment: increase in maximum penalty on conviction on indictment
	In section 127 of the 1983 Act (ill-treatment or wilful neglect of patients), in subsection (3)(b), for "two years" substitute "five years"."

Baroness Murphy: My Lords, the amendment is similar to the one tabled in Committee. I shall not repeat the arguments. It merely brings the statute up to date. As I remarked in Committee, I do not think anybody has been prosecuted under this legislation, but I have discovered that there was a case prosecuted under an identical clause in the 1959 Act, Pountney v Griffiths in 1975, that went to the Appeal Court. It may be used at some time, and seems to send an appropriate signal to patients and carers that this is a serious matter. I beg to move.

Lord Hunt of Kings Heath: My Lords, I welcome the amendment of the noble Baroness, Lady Murphy. As she says, although it may not have been used, the fact that the amendment raises the offences seems an important signal. The Government are glad to support it.

Baroness Murphy: My Lords, I am very grateful to the Minister indeed.

On Question, amendment agreed to.
	[Amendment No. 71 not moved.]

Baroness Neuberger: moved Amendment No. 71A:
	Before Clause 36, insert the following new Clause—
	"Use of seclusion and other forms of behaviour management
	After section 142 of the 1983 Mental Health Act insert—
	"142A Use of seclusion and other forms of behaviour management
	(1) This section applies to the use of seclusion, mechanical restraint or other interventions to manage disturbed behaviour as may be specified for the purposes of this section by regulations made by the Secretary of State.
	(2) For the purposes of this Act, "seclusion" means the supervised confinement of a patient in a room, which may be locked to protect others from significant harm.
	(3) A patient shall not be subject to any form of intervention to which this section applies, except in accordance with regulations.
	(4) The Secretary of State shall make regulations prescribing—
	(a) circumstances under which any form of intervention to which this section applies may be used; (b) reporting requirements on the use of any such intervention; (c) review and scrutiny of the use of such interventions; and (d) circumstances under which patients subject to such interventions must be visited by persons authorised by the Commission.
	(5) Before making any regulations for the purposes of this section, the Secretary of State shall consult such bodies as appear to him to be concerned.""

Baroness Neuberger: My Lords, the amendment has been introduced late in the passage of the Bill due to the report of the Joint Committee on Human Rights. Other noble Lords around the House will be quite aware of that.
	The JCHR recommended:
	"We urge the Government to ensure that, whatever method of regulation is adopted, sufficient safeguards are included on the face of the bill to ensure that seclusion is only used when strictly necessary and that individuals subject to it should have access to review at intervals to ensure that it is brought to an end when no longer necessary".
	The amendment deals with seclusion and regulates its use and other methods of managing disturbed behaviour to provide greater safeguards to patients subjected to such interventions. The Joint Committee on Human Rights identified the lack of regulation in the Act as an omission. The House of Lords held, in R (Munjaz) v Mersey Care NHS Trust and Others, concerning the introduction of a written policy governing the seclusion of patients at Ashworth Hospital that diverged considerably from the framework in the code of practice on the frequency of review, that,
	"hospitals are free to depart from the Code if they have a good reason for doing so".
	Given the recommendations of the JCHR and the absence of reassurances about the status of the code of practice, we thought it appropriate to debate the regulations of seclusion even at this stage of the Bill.
	Seclusion is defined in the code of practice on the Mental Health Act 1983 as,
	"the supervised confinement of a patient in a room, which may be locked to protect others from significant harm. Its sole aim is to contain severely disturbed behaviour which is likely to cause harm to others".
	The definition in this amendment is based on that. The code also specifies that:
	"Seclusion should be used ... as a last resort ... for the shortest possible time".
	It,
	"should not be used; as a punishment or threat ... as part of a treatment programme ... because of shortage of staff",
	or,
	"where there is ... risk of suicide or self-harm".
	I think that the Mental Health Act Commission may have proposed a slightly different amendment to guidance on the latter point.
	It may be necessary to have a fuller description in regulations or the code of practice to ensure that all practices that amount to seclusion are indeed covered. In its latest biennial report, the Mental Health Act Commission sets out various terms used to describe a range of practices that still amount to seclusion. These include therapeutic isolation, single-person wards, enforced segregation, and restriction of movement. The quality of care provided under these circumstances can vary widely, from the very good to the dangerously substandard. The Department of Health has also referred to different kinds of nursing and accommodation that is separate from other patients as "alternatives to seclusion". Again, that may undermine regulation of these practices. This amendment deliberately uses the language of managing behaviour to differentiate these interventions from clinical or therapeutic interventions; I cannot state too clearly or strongly that they are not.
	There is some considerable prevalence of seclusion being used in the mental health system. The Mental Health Act Commission's own census found that 3 per cent of all psychiatric in-patients resident on 31 March 2005 had experienced one or more episodes of seclusion in their period of admission or in the previous three months, 112 patients had experienced at least five periods, and 42 at least 10. The maximum number was over 100, and there were particularly high rates for black patients. Here is an issue that ought, yet again, to ring alarm bells with all of us; it seems to be overused for black people and those from minority-ethnic communities. It appears that this could be an area where the use of seclusion—if it is to happen at all—is overly strong with some communities rather than others.
	Over six months in 2004-05, the Mental Health Act Commission collected data on episodes of patients being held in isolation for 48 hours or more. It was notified of 74 episodes in the acute sector and 156 in the medium or high secure sector. Many were for much longer periods, and many were not described as seclusion. The Healthcare Commission's recent audit of psychiatric units found about one-third saying that they used seclusion at some point or other.
	Numerous aspects of seclusion may lead to patients' rights being infringed. The grounds for using seclusion could be punishment rather than treatment. There could be conditions in which people were accommodated without a toilet or any washing facilities—people can be cared for really badly during seclusion—or issues about how seclusion is brought to an end. For instance, there are examples of staff requiring the patient to "show remorse", or all sorts of issues in how complaints about using seclusion are dealt with. All these areas could be addressed by the review and by the visiting requirements envisaged in regulations.
	This amendment simply proposes that the Act sets the scope for regulations with which the use of seclusion, and any other interventions added to the clause, must comply. Those would define: the circumstances in which the measures could be used; reporting requirements; review and scrutiny; visiting issues; and, if there are people who are subject to prolonged or repeated seclusion, making sure that they are visited by an independent person who can protect their rights. These regulations would set limits on the use of seclusion and provide procedural safeguards to check whether people in this extremely powerless set of circumstances were being treated in accordance with the code of practice. As this is such an important and difficult area, we believe that there has to be consultation on any regulations before they are laid.
	Finally, in addition to the recent Joint Committee on Human Rights report, the Joint Committee on the draft Mental Health Bill recommended that the Bill regulate the use of seclusion and mechanical restraint by requiring the same kind of safeguards provided in the current code of practice to ensure that decisions to seclude or restrain are made only when absolutely necessary, are subject to regular monitoring and review, and that the seclusion or restraint is brought to end immediately the intervention is no longer needed for the protection of others. There should be a requirement to report such interventions to the Mental Health Act Commission and, if seclusion or restraint is prolonged, a member of the expert panel should visit the patients. The Government agreed with the Joint Committee on the draft Mental Health Bill about this when that draft Bill was still current and they agreed that similar safeguards should continue in this Bill. They also shared the concerns about prolonged seclusion and restraint and were exploring how best to safeguard patients' interests in the context of the new legislation. According to the Mental Health Act Commission, the Government were considering using the mechanisms then being proposed in the Mental Health Bill that were concerned with medical treatment.
	We were all delighted that the Government were interested in regulating seclusion, but we are concerned that, given the legislation now before us, it no longer appears to be on the Government's agenda and similar mechanisms to those governing treatments are being considered. Seclusion is a means of containing violent behaviour, but it is not a treatment. Confusing the two functions could have the effect of legitimising seclusion for other purposes and weakening any safeguards by giving scope for clinical discretion. We believe that this is a golden opportunity for the Government to fulfil their earlier intention to commit to a form of regulation and to work out, in consultation, the best way of doing it. I beg to move.

Lord Patel of Bradford: My Lords, I am grateful to the noble Baronesses, Lady Neuberger and Lady Barker, for raising this issue following the Joint Committee's recommendation. I agree with the general thrust of this amendment, and I hope that serious consideration will be given to it. I certainly believe that there should be regulation of the use of seclusion.
	As the noble Baroness said, the Mental Health Act Commission, of which I am the chairman, called for this in several of its reports, including the most recent, the 11th biennial report. That was published before the abandonment of the draft Bill of 2004, in which the Government, rather to the horror of the Mental Health Act Commission, proposed regulation of a sort using the mechanisms of Part 4 of the Act. The Minister may have read the discussion of seclusion in chapter 4 of the commission's report, but if not, I hope that he will do so, paying particular attention to the section entitled "The Perils of Medicalisation".
	I am pleased that this amendment refers to the management of disturbed behaviour rather than to its treatment. Let us not fall into the trap of assuming that these are simply matters for clinical discretion, but recognise that they engage rather wider issues of keeping order within hospitals. I note that this amendment prescribes the circumstances in which seclusion or other types of serious restraint may be used. I sense that the response from the Minister may be that it could be dangerous to fetter services in such ways, but I hope that such arguments will not close off deeper consideration of how such regulations might be formed.
	While we must not establish quasi-clinical criteria for the act of isolating a patient from others, it does not seem impossible to me that we could have regulations that set out what seclusion can and cannot be for, rather in the way that Section 62 sets out when certain treatments can and cannot be given. Just as importantly, we need a statutory definition of seclusion that will prevent services claiming never to seclude a patient when all they really do is operate seclusion under some euphemistic term. If we can prevent hospitals euphemising seclusion away, we should certainly require them to keep records of the practice that would be available to monitoring bodies and their own internal auditing procedures. This amendment provides regulatory powers to enable all these things.
	The Minister's brief on this amendment no doubt suggests that he should repeat the mantra that these matters are appropriate for a code of practice, not statute. I hope that he will pause before doing so and reflect upon the point raised by the noble Baroness, Lady Neuberger, about the way in which the code's guidance on seclusion was at the centre of the judicial ruling in Munjaz. That ruling effectively tells services that they can write their own codes of practice on seclusion so long as they do nothing in breach of the European convention. It is a shame that the Department of Health, although nominally the co-sponsor of the code, argued in submissions to the court that services should be free to disregard it.
	We have not yet finished debating the status of the code and I will not pre-empt that discussion, but I ask the Minister to remember that services already have guidance on seclusion in a code of practice that many of them do not follow, and which some of them openly disregard. Just as the dissenting judgment of the noble and learned Lord, Lord Steyn, in Munjaz warned of a free-for-all, the use of the code in this area has led to something of a Wild West in practice. The Mental Health Act Commission cannot even collect meaningful seclusion data across the high-security sector because hospitals—or rather one in particular, Ashworth Hospital—operate incompatible, or at least incomparable, systems of seclusion. Patients transferred from one hospital to another, not just in the high-security sector, may now find arbitrary differences in how hospital regimes operate seclusion, despite the European convention requirement for transparency and predictability in matters that potentially engage the rights that it establishes.
	I suggest to the Minister that this is not good enough, and that more stringent regulation is needed.

Lord Hunt of Kings Heath: My Lords, I am grateful to noble Lords. I certainly do not want to close down the options for discussion and I am sorry if my applause for the code is seen as a mantra. It is important. We have debated—no doubt, later this evening we shall further debate—the code of practice, but the two go very much together. There are very good reasons why some matters are left to the code and are not in legislation or regulations.
	Essentially, we think it unnecessary and undesirably inflexible to regulate seclusion, restraint and other similar interventions in the way proposed by the amendment. It is true that the amendment leaves the details to regulations, which is certainly preferable to trying to codify rules in primary legislation, but we still foresee difficulties finding sufficiently clear definitions for regulations. Such definitions should not, on the one hand, encroach on what may be thought of as routine clinical interventions, rather than crisis responses. On the other hand, I very much agree that we should not encourage people to use less appropriate techniques to avoid the bureaucracy of the regulations—the risk of the perverse incentive—or because what they believe to be the best in the circumstances is not permitted.
	There is genuine concern that we may unwittingly restrict staff to a limited range of techniques that do not sufficiently recognise the huge variety of scenarios that they may face. Any kind of restrictive regulation invariably runs the risk of inhibiting new innovative techniques for managing difficult behaviour.
	We accept that there is variation in the use of seclusion and restraint, not all of which represents genuine differences in need. I have no doubt that there are places where practice can be improved. However, we must be wary of defining what hospital staff may or may not do either as part of routine clinical care or as an immediate response to dangerous situations. It is worth remarking on the issue of violence towards NHS staff. A programme is being broadcast at this very moment about it. We need to recognise the situations in which staff find themselves. We have to pay regard to their interests in these matters.
	Currently we address such issues through guidance to practitioners in the code of practice. The code currently states that hospital managers should have clear written policies on the use of physical and other forms of restraint. Physical restraint should take place only as a last resort, not routinely. Any restraint should also be reasonable in the circumstances, apply the minimum force necessary to prevent harm to the patient or others, be for only as long as necessary and be sensitive to gender and race issues.
	In preparing the draft illustrative code of practice, I have remained very aware of the deliberations in the Joint Committee on Human Rights and our evidence to it, which concluded that the most appropriate approach to this practice issue is to provide for it through guidance in the code of practice. That remains our position. In preparing the draft illustrative code of practice to accompany the Bill, we revisited and updated the guidance on seclusion and restraint. It will be further developed in the new code to be issued for consultation. I understand that the Assembly Government intend to make a similar provision in the code of practice for Wales. The draft illustrative code of practice reflects the NIMHE 2004 guidance, the Mental Health Policy Implementation Guide. It also advises that the NICE guidelines are also adhered to. The NICE guidelines address the management of aggression and violence, including restraint.
	The use of seclusion and restraint is often a clinical judgment. Its use should be informed by detailed professional guidance of the sort to which I have just referred. The code of practice provides that such guidance is brought to the attention of practitioners and service providers. We need to be clear about the observation of the Appellate Committee of this House that the requirement that cogent reasons be shown for any departure from the code sets a high standard that is not easily satisfied. We must be clear about that, although I realise that we will probably discuss this a little later on.
	Section 120 of the Act already enables the Mental Health Act Commission at any reasonable time to visit and interview any detained patient and to inspect any records relating to the detention or treatment of that patient. I know that there are concerns that young men from some black and minority-ethnic groups are over-represented in the use of seclusion and restraint. I understand those concerns: we all have general concerns about how a group of people is treated in the current services. I understand that the 2006 census will show less emphasis in relation to that figure. I must be careful not to speculate, but one can only hope that some of the current publicity and the advice and guidance are beginning to have an impact on service provision and practice activities in the services.
	We will keep the operation of the Act under review, and we will look for comprehensive information on how it is used, which will help us to monitor better what is happening. Again, as I said about places of safety, when the new combined regulator for health and social care is formed, we will consider how information on the use of seclusion may be reported to the new regulator. I do not seek to undermine anything that the noble Baroness and the noble Lord have said about this. We simply think that it is better to deal with this in the code.

Baroness Neuberger: My Lords, I am extremely grateful to the Minister for his reply, although I am not wholly content with it. He is obviously not entirely surprised to hear that, either. Let me say just a few things. First, given the very clear recommendation from the Joint Committee on Human Rights, when it said:
	"We urge the Government to ensure that, whatever method of regulation is adopted, sufficient safeguards are included on the face of the bill",
	it is extraordinary for the Government to say yet again that they think that this is better dealt with in the code of practice. I find that really quite worrying, because to some extent they are simply not listening. However, we have heard about the code of practice and will come to that later.
	Secondly, I fully accept that the guidance on seclusion is the NICE and the NIMHE guidance. I do not think that anyone has any particular quarrel with that, except that what the Minister said to me about wanting to leave it to clinical judgment has come up time and time again. This is not an area that one would normally expect to leave to clinical judgment, because it has nothing to do with treatment: it is being used simply to protect others from significant harm. That is very different from the normal use of clinical judgment in a treatment decision. This is an important point, which the Minister did not pick up. All noble Lords around the House are very concerned about attacks on NHS staff, but it is precisely because seclusion is used to protect others from significant harm that you want to be very clear about where it should be used—to protect staff and others from harm.
	Given the lateness of the hour, and having voiced some of my objections to some of what the Minister has said, I beg leave to withdraw the amendment. I shall take this away and consider how we might come back, even at the very latest stage of the Bill—at Third Reading.

Amendment, by leave, withdrawn.
	[Amendment No. 72 not moved.]

Baroness Meacher: moved Amendment No. 72A:
	After Clause 38 , insert the following new Clause—
	"Local arrangements for assessment, conveyance and admission
	(1) The 1983 Act is amended as follows.
	(2) For section 140 substitute—
	"140 Local arrangements for assessment, conveyance and admission
	(1) It shall be the duty of every Primary Care Trust, in conjunction with—
	(a) the NHS trusts contracted to provide in-patient mental health services and ambulance services within its area; (b) the police authority or authorities within its area; and (c) the local social services authority or authorities within its area,
	to prepare, publish and maintain up-to-date a comprehensive scheme for the safe, timely and effective management of the cases of patients within its area who may require urgent admission to hospital for treatment for mental disorder, whether under this Act or otherwise.
	(2) This scheme shall include details of—
	(a) the arrangements for the assessment of urgent cases and for ensuring the safety of the patient, carers, those carrying out the assessment and any other persons present during the assessment; (b) the arrangements for obtaining a bed, if required, and the criteria for determining the relative priority of urgent cases awaiting admission; (c) the arrangements for ensuring safe custody and conveyance of patients who need to be admitted to hospital under section 6(1) of this Act; and (d) agreed time-limits for response by the bodies listed in subsection (1)(a) to (c) above in cases of urgency where there is a serious risk to the safety of the patient or others.""

Baroness Meacher: My Lords, I shall also speak to Amendment No. 72B. These amendments are strongly supported by the British Association of Social Workers. The first amendment seeks to ensure that the responsible organisations, the primary care trusts and others prepare and maintain a scheme to deal quickly and efficiently with patients detained under the Mental Health Act who therefore urgently need an in-patient hospital bed. The amendments set out the arrangements for ensuring the safety of the patient, carers and professionals present during the assessment, arrangements for obtaining a hospital bed and arrangements for ensuring the safe custody and conveyance of the patient.
	Why is this amendment important? At present, the only individual with a statutory responsibility for a person's safety and welfare, once that person has been formally assessed as liable to be detained, is the approved social worker in person. That personal responsibility continues until the patient is admitted on to a hospital ward. Frequently, it is unsafe to transport a newly detained patient without the police and an ambulance, but last year a survey by the Association of Directors of Social Services into the ASW service found that nearly 60 per cent of local areas reported problems with accessing police and ambulance support. This level of problems occurs despite the fact that for a number of years the code of practice has made it a requirement on local social services authorities to have policies with police and ambulance services covering access to support. I understand that the British Association of Social Workers is in discussion with the department about whether the problems can be dealt with by the code of practice rather than through these amendments. The experience to date, I have to say, is not encouraging.
	Amendment No. 72A seeks to place the ultimate responsibility for conveying the patient to hospital upon the health trust responsible for providing the treatment to a detainee. The approved social worker or approved mental health practitioner under the new Bill would continue to undertake the duties of assessment, application for detention and conveyance to hospital, but would be conveying on the trust's behalf. The important thing here is that in extremis the AMHP should be able to call upon the trust's director on duty to make sure that a bed is available for a detained person. Certainly I am conscious of that in my trust. I know that if an ASW phoned our director on duty, something would happen quickly.
	I could give lots of examples of the problems faced by individual social workers, but I shall cite just one. Due to the threats of an individual to his family members and their very real fears for their own safety, and the fact that his mental state was causing concern, a consultant asked for an urgent ASW assessment. This service user happened to be a martial arts expert, which was a little unfortunate. The police refused to help. The ASW was therefore sent into the house armed with nothing more than a mobile phone with 999 programmed into it. Things got out of hand and she had to call the police urgently. Thankfully, all the response cars in the county turned up, so the person was safe. However, had the police responded at the start, perhaps a couple of officers might have contained the situation.
	The availability of ambulances in these crises also varies considerably across the country, and again if no ambulance comes, perhaps the police will not arrive either. They will come only if an ambulance also comes to the scene. Who is left holding the problem? It is the individual ASW. Alternatively, the ASW may be relatively fortunate. The police officers and an ambulance agree to help to convey the patient to hospital, but even then—and I am very conscious of this particular situation, having been rather close to it—it is quite possible for the ASW to arrive only to be told that the bed has been filled by another emergency admission. The police officers say, "Sorry, we can't hang about. We have to go to another incident". The ambulance driver says, "We can only stay for another 10 minutes". What is the ASW, and in the new world, the AMHP, supposed to do in that situation? As the Bill stands, they will carry personal legal responsibility. That situation simply should not happen, and I am sure that Ministers would agree. But the risk is very real on a daily basis.
	Wards across the country are functioning with 100 per cent occupancy. In fact, in one of our boroughs, bed occupancy is 103 per cent. Ward closures continue—we closed wards last year; we will be closing some this year—in order to release funds for community-based services. The amendment is of growing importance as in-patient hospital beds in our mental health services are becoming an incredibly scarce resource. In my view, and I speak as the chairman of a mental health trust, mental health trusts should have the statutory responsibility to ensure that detained patients are safely conveyed to our hospital wards once they have been deemed liable to be detained.
	I hope that the Minister will be willing to consider this amendment most carefully. I appreciate that these issues are not straightforward, but I know that she will be as concerned as I am to avoid serious injuries or worse to approved mental health practitioners who will be carrying the conveyance responsibilities in future. Perhaps I might mention that many years ago, when I was an ASW, a colleague of mine went to a house to assess a patient and she was decapitated. My interest in this amendment is somewhat personal. I beg to move.

Baroness Royall of Blaisdon: My Lords, Amendments Nos. 72A and 72B are similar to amendments that were laid in Committee, and I know that they are supported by the British Association of Social Workers—quite understandably, given the comments just made by the noble Baroness. I am aware that in some parts of the country social workers can experience difficulties in accessing the services that they need in order to safely convey and admit patients. I note the figures cited by the noble Baroness and her graphic examples of problems experienced with ASWs. We fully sympathise with their concerns and understand their frustrations, and I note the dangers. However, we are not convinced that these amendments are the way to improve things, although clearly improvements are needed.
	The amendments seek to put the onus on trusts to sort out difficulties in co-ordinating the services needed to convey and admit patients safely. I understand that approved social workers feel that they as individuals cannot influence the availability of the services and that a trust as an organisation would have more clout. However, approved mental health professionals should be supported by the local social services authorities on whose behalf they are acting. Indeed, it is often the case now that difficulties are escalated within the local social services authority, and the force of the LSSA is brought to bear on the situation.
	It is crucial that there are effective local arrangements and good ongoing communication between all the bodies involved in conveying and admitting a patient. Amendment No. 72A would put a requirement in legislation for such arrangements to be in place. However, the Mental Health Act code of practice already says that there should be arrangements between the bodies involved in assessing, conveying and admitting patients to hospital. All the code does is state what is self-evidently the job of local bodies to co-operate with one another to put in place effective local services. They do not need guidance from the Government to tell them what is required. In many parts of the country protocols that are in place are working well, but where that is not the case there is no reason to believe that placing the requirements for protocols in legislation would make it any more likely that those protocols would be effective or adhered to.
	Organisations at a local level need to consider whether the arrangements that they are already expected to have in place are working properly to protect patients and, of course, to protect their staff. That can be done only at a local level. Changing the legislation is not the way forward. We will consider how the code of practice can be used to emphasise further to local bodies what their obligations are, and naturally we would welcome further comments from noble Lords.
	In addition, I wonder if the increased emphasis on local area agreements in the local government Bill currently being considered in another place will help to ensure that health services and local social services work more closely together so that there really are more effective local arrangements. In addition, I hope that the implementation of the Mental Health Bill will be an excellent opportunity to remind all local agencies of their obligation to work together.
	We sympathise with the sentiment behind the amendments, but we believe that these issues are better dealt with through interventions at a local level. I therefore urge the noble Baroness, Lady Meacher, not to press her amendments.

Baroness Meacher: My Lords, I am obviously disappointed at the Minister's response. I hope that we can negotiate with the Home Office to improve responsibility for the police arriving at these scenes. It seems to a number of people involved that the police are the key here—if they arrive, the ambulances will arrive. If the police see their responsibility as being available for these emergencies, that will be very helpful.

Baroness Royall of Blaisdon: My Lords, I note the noble Baroness's comments. I undertake to explore that issue further; speaking with local police authorities about being more aware of the need to work more closely with the other agencies is a sensible step forward.

Baroness Meacher: My Lords, I am most grateful to the Minister for that suggestion. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 72B not moved.]

Lord Patel of Bradford: moved Amendment No. 72C:
	After Clause 38, insert the following new Clause—
	"Independent mental health advocacy
	After section 125 of the 1983 Act insert—
	"125A Independent mental health advocacy
	(1) The appropriate authority must arrange, to such extent as it considers necessary to meet all reasonable requirements, for help from persons to be known as independent mental health advocates, to be available to qualifying patients.
	(2) The help available under the arrangements must include—
	(a) help in obtaining information about and understanding— (i) what medical treatment is being provided to the patient; (ii) why it is being provided; (iii) under what authority it is being provided; (iv) the requirements of this Act which apply in connection with the patient's treatment; and (v) the rights which can be exercised by or in respect of him under this Act, and (b) help (by way of representation or otherwise) in exercising those rights.
	(3) An independent mental health advocate authorised by a patient or his nearest relative on his behalf may at any reasonable time, for the purpose of providing, in accordance with the arrangements, help requested by the patient or his nearest relative, meet with the patient in private.
	(4) The appropriate authority may by regulations provide that a person may act as an independent mental health advocate—
	(a) only if requirements specified in the regulations are met in respect of him; (b) only if requirements specified in the regulations are met in respect of any person with whom arrangements are made for him to act as an independent mental health advocate; and (c) only in circumstances otherwise specified in the regulations.
	(5) In making arrangements under this section, the appropriate authority must have regard to the principle that the provision of help under the arrangements should, so far as practicable, be independent of any person responsible for the patient's treatment.
	(6) The following are qualifying patients—
	(a) a patient who is liable to be detained by virtue of an application for admission for assessment or an application for admission for treatment under Part 2 of this Act; (b) a community patient; (c) a patient who is removed to a place of safety within the meaning of section 135— (i) in the execution of a warrant under section 135; or (ii) by a constable under section 136; (d) an accused person within the meaning of section 35 remanded under that section to hospital for a report on his mental condition; (e) an accused person within the meaning of section 36 remanded under that section to hospital for treatment; (f) a patient in respect of whom there is in force— (i) a hospital order; (ii) a transfer direction; (iii) a hospital direction; (g) a patient, not being liable to be detained under this Act, who is asked to consent to any form of treatment to which section 57 applies.""

Lord Patel of Bradford: My Lords, in moving this amendment I will speak to Amendment No. 72D as well.
	We left this subject in Committee on something of a high note, with the Minister undertaking to consider this amendment during the Bill's passage. As I understood the noble Baroness, Lady Royall of Blaisdon, to have said earlier, the Minister is still considering it, so I hope this amendment may jolly him along.
	As there is no difference between us over the value of advocacy services, I shall not belabour that point. I remind the Minister—unnecessarily, I know—that the Mental Capacity Act is soon to come into force, with its special advocacy provisions. Indeed, the Government have made something of a virtue of this in public in the past week.
	This legislation has wide support among mental health practitioners and user groups. The Minister will not need reminding that the Mental Capacity Act provides a statutory duty on authorities to provide independent advocacy to persons who, for example, face serious medical treatment under the powers of that Act. The glaring lack of such safeguards for patients who are formally detained under the Mental Health Act is spelt out in Section 37(2) of the Mental Capacity Act.
	I believe that this distinction between the rights of patients under the Mental Capacity Act and the Mental Health Act is not only unethical in terms of equity of provision but dangerous. It is dangerous because we run the risk of having two statutes that have considerable overlap. The Mental Capacity Act is, and is seen to be, forward-thinking, concerned with patient rights and protections, and so on, whereas the Mental Health Act appears to be a set of second-rate provisions, outdated attitudes and the shifty machinations of a Home Office forever seeking unfettered powers of social control.
	Every time we allow some unjustifiable inequity between the way in which these two statutory frameworks deal with patients, we move a step closer towards the Manichean system of a nice mental health law and a nasty mental health law. The danger, as this House has heard before, is that the nasty mental health law drives away those whom we would wish to seek early treatment, not least on grounds of safety.
	Such concerns take us slightly away from the subject immediately at hand. To return to the question of advocacy, whether a detained patient is judged to be incapacitated or not in relation to certain decisions about his or her care, we must never forget that such decisions are taken within a framework of extraordinary disempowerment. I cannot see why patients detained under the 1983 Act should be any less deserving of statutorily based advocacy services than incapacitated patients falling under the terms of the Mental Capacity Act.
	I hope that this puts some extra spark into the Minister's deliberations. I beg to move.

Baroness Royall of Blaisdon: My Lords, I feel enthused and sparked up. In Committee, we said that we would take away the issue of advocacy and consider the best way to make advocacy services available. That is exactly what we have done, but tonight's deliberations will inform us more and will add spark to that debate. As I said in the previous debate on advocacy for children and young people, this issue demands careful consideration, so we are continuing to develop our proposals on the subject. We will bring them back when the Bill is considered in the other place. In the mean time, we look forward to discussing those proposals with interested noble Lords, and I would ask the noble Lord to withdraw his amendment.

Lord Patel of Bradford: My Lords, I am really pleased that at this late hour I have managed to bring some spark into the House. I am very grateful for the Minister's comments and, therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 72D not moved.]

Lord Hunt of Kings Heath: My Lords, my spark has all gone and I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.
	House adjourned at 10.11 pm.